Law School

The law of restitution is the law of gains-based recovery, in which a court orders the defendant to give up their gains to the claimant. It should be contrasted with the law of compensation, the law of loss-based recovery, in which a court orders the defendant to pay the claimant for their loss.

Evolving Meaning.

American Jurisprudence 2d edition notes:

The word "restitution" was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner and returning to the status quo but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. In summary, therefore, the word "restitution" means the relinquishment of a benefit or the return of money or other property obtained through an improper means to the person from whom the property was taken.

Legal vs Equitable Remedy.

Restitution may be either a legal remedy or an equitable remedy, "depending upon the basis for the plaintiff's claim and the nature of the underlying remedies sought". Generally, restitution and equitable tracing is an equitable remedy when the money or property wrongfully in the possession of the defendant is traceable (for example, can be tied to "particular funds or property"). In such a case, restitution comes in the form of a constructive trust or equitable lien.

Where the particular property at issue cannot be particularly identified, restitution is a legal remedy. This occurs, for example, when the plaintiff "seeks a judgment imposing personal liability to pay a sum of money".

This type of damages restores the benefit conferred to the non-breaching party. Put simply, the plaintiff will get the value of whatever was conferred to the defendant when there was a contract. There are two general limits to recovery, which is that a complete breach of contract is needed, and the damages will be capped at the contract price if the restitution damages exceed it.

Differing Views on Restitution.

The orthodox view suggests that there is only one principle on which the law of restitution is dependent, namely the principle of unjust enrichment. However, the view that restitution, like other legal responses, can be triggered by any one of a variety of causative events is increasingly prevalent. These are events in the real world which trigger a legal response. It is beyond doubt that unjust enrichment and wrongs can trigger an obligation to make restitution. Certain commentators propose that there is a third basis for restitution, namely the vindication of property rights with which the defendant has interfered. It is arguable that other types of causative events can also trigger an obligation to make restitution.

In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental functions were "diminished" or impaired.

Diminished capacity is a partial defense to charges that require that the defendant act with a particular state of mind. For example, if the felony murder rule does not apply, first degree murder requires that the state prove beyond a reasonable doubt that the defendant acted with premeditation, deliberation, and the specific intent to kill—all three are necessary elements of the state's case. If evidence exists, sufficient to create a reasonable doubt as to whether the defendant because of mental illness or "defect" possessed the capacity to premeditate, deliberate or form the specific intent to kill then the state cannot convict the defendant of first degree murder. This does not mean that the defendant is entitled to an acquittal. The defendant still might be convicted of second-degree murder which only requires that the defendant act with general malice.

The defense's acceptance in American jurisdictions varies considerably. The majority of states have adopted it by statute or case decision, and a minority even recognise broader defenses such as "irresistible impulse". Some U.S. states restrict the defense to the charge of murder only where a successful defense will result in a manslaughter conviction instead of murder. Until recently, the Republic of Ireland did not accept the partial defense. The Irish Supreme Court had rejected the existence of the defense in DPP v O'Mahony. The case was recently abrogated, however, by enactment of the Criminal Law (Insanity) Act 2006, effective June 1, 2006. The act, in pertinent part, specifically adopted the partial defense for the charge of murder where a successful defense will result in a manslaughter conviction instead of murder.

The defense is to be contrasted with insanity which is a complete but affirmative defense. In most jurisdictions a defendant would be acquitted on the grounds of insanity if the defendant established to the satisfaction of the jury that he suffered from such a mental disease or defect that he was unable to appreciate the consequences of his actions or did not know what he was doing was wrong. As noted a successful insanity defense will result in acquittal although a number of jurisdictions have adopted the guilty but insane verdict. The defense of insanity and diminished capacity although clearly distinct are not inconsistent defenses and both may be at issue in the same case. The critical distinctions are that diminished capacity is a partial, negating defense (negates an element of the state's case) with the burden on the state to show that the defendant acted with the requisite state of mind while insanity is a complete but affirmative defense—the defendant bearing the burden of proving that he was legally insane.

A trust may have multiple trustees, and these trustees are the legal owners of the trust's property, but have a fiduciary duty to beneficiaries and various duties, such as a duty of care and a duty to inform. If trustees do not adhere to these duties, they may be removed through a legal action. The trustee may be either a person or a legal entity such as a company, but typically the trust itself is not a legal entity and any litigation involving the trust must include the trustee as a party. A trustee has many rights and responsibilities which vary based on the jurisdiction and trust instrument. If a trust lacks a trustee, a court may appoint a trustee.

The trustees administer the affairs attendant to the trust. The trust's affairs may include prudently investing the assets of the trust, accounting for and reporting periodically to the beneficiaries, filing required tax returns and other duties. In some cases dependent upon the trust instrument, the trustees must make discretionary decisions as to whether beneficiaries should receive trust assets for their benefit. A trustee may be held personally liable for problems, although fiduciary liability insurance similar to directors and officers liability insurance can be purchased. For example, a trustee could be liable if assets are not properly invested. In addition, a trustee may be liable to its beneficiaries even where the trust has made a profit but consent has not been given. However, in the United States, similar to directors and officers, an exculpatory clause may minimize liability; although this was previously held to be against public policy, this position has changed.

In the United States, the Uniform Trust Code provides for reasonable compensation and reimbursement for trustees subject to review by courts, although trustees may be unpaid. Commercial banks acting as trustees typically charge about 1% of assets under management.

Beneficiaries.

The beneficiaries are beneficial (or 'equitable') owners of the trust property. Either immediately or eventually, the beneficiaries will receive income from the trust property, or they will receive the property itself. The extent of a beneficiary's interest depends on the wording of the trust document. One beneficiary may be entitled to income (for example, interest from a bank account), whereas another may be entitled to the entirety of the trust property when they attain the age of twenty-five years. The settlor has much discretion when creating the trust, subject to some limitations imposed by law.

The use of trusts as a means to inherit substantial wealth may be associated with some negative connotations; some beneficiaries who are able to live comfortably from trust proceeds without having to work a job may be jokingly referred to as "trust fund babies" (regardless of age) or "trustafarians"

A civil union (also known as a civil partnership) is a legally recognized arrangement similar to marriage, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage (with child adoption being a common exception, and the title itself).

Civil unions under one name or another have been established by law in several, mostly developed, countries in order to provide legal recognition of relationships formed by unmarried same-sex couples and to afford them rights, benefits, tax breaks, and responsibilities similar or identical to those of legally married couples. In 1989, Denmark was the first country to legalize civil unions, for same-sex couples; however most other developed democracies did not begin establishing civil unions until the 1990s or early 2000s, often developing them from less formal domestic partnerships. While civil unions are often established for both opposite-sex couples and same-sex couples, in a number of countries they are available to same-sex couples only. In Brazil, civil unions were first created for opposite-sex couples in 2002, and then expanded to include same-sex couples through a supreme court ruling in 2011. In the majority of countries that established same-sex civil unions, they have since been either supplemented or replaced by same-sex marriage. Civil unions are viewed by LGBT rights campaigners as a "first step" towards establishing same-sex marriage, as civil unions are viewed by supporters of LGBT rights as a "separate but equal" or "second class" status.

Many jurisdictions with civil unions recognize foreign unions if those are essentially equivalent to their own; for example, the United Kingdom lists equivalent unions in the Civil Partnership Act 2004 Schedule 20. The marriages of same-sex couples performed abroad may be recognized as civil unions in jurisdictions that only have the latter.

In international law and business, patent trolling or patent hoarding is a categorical or pejorative term applied to a person or company that attempts to enforce patent rights against accused infringers far beyond the patent's actual value or contribution to the prior art, often through hardball legal tactics (frivolous litigation, vexatious litigation, strategic lawsuits against public participation (SLAPP), chilling effects, and the like). Patent trolls often do not manufacture products or supply services based upon the patents in question. However, some entities which do not practice their asserted patent may not be considered "patent trolls" when they license their patented technologies on reasonable terms in advance.

Other related concepts include patent holding company (PHC), patent assertion entity (PAE), and non-practicing entity (NPE), which may or may not be considered a "patent troll" depending on the position they are taking and the perception of that position by the public. While in most cases the entities termed "trolls" are operating within the bounds of the legal system, their aggressive tactics achieve outcomes contrary to the origins of the patent system, as a legislated social contract to foster and protect innovation; the rapid rise of the modern information economy has put the global intellectual property system under more strain.

Patent trolling has been less of a problem in Europe than in the United States because Europe has a loser pays costs regime. In contrast, the U.S. generally employs the American rule, under which each party is responsible for paying its own attorney's fees. However, after the U.S. Supreme Court's decision in Octane Fitness, LLC v ICON Health & Fitness, Inc on April 29, 2014, it is now easier for courts to award costs for frivolous patent lawsuits.

Etymology and definition.

The term patent troll was used at least once in 1993, albeit with a slightly different meaning, to describe countries that file aggressive patent lawsuits. The 1994 educational video, The Patents Video also used the term, depicting a green troll guarding a bridge and demanding fees. The origin of the term patent troll has also been variously attributed to Anne Gundelfinger, or Peter Detkin, both counsel for Intel, during the late 1990s.

Patent troll is currently a controversial term, susceptible to numerous definitions, none of which are considered satisfactory from the perspective of understanding how patent trolls should be treated in law. Definitions often include a party that does one or more of the following:

Purchases a patent, often from a bankrupt firm, and then sues another company by claiming that one of its products infringes on the purchased patent;

Enforces patents against purported infringers without itself intending to manufacture the patented product or supply the patented service; (some argue this could be true even for the original inventor, whereas other draw a clear distinction on this point);

Enforces patents but has no manufacturing or research base;

Focuses its efforts solely on enforcing patent rights; or

Asserts patent infringement claims against non-copiers or against a large industry that is composed of non-copiers.

The term "patent pirate" has been used to describe both patent trolling and acts of patent infringement. Related expressions are "non-practising entity" (NPE) (defined as "a patent owner who does not manufacture or use the patented invention, but rather than abandoning the right to exclude, an NPE seeks to enforce its right through the negotiation of licenses and litigation"), "patent assertion entity" (PAE), "non-manufacturing patentee", "patent shark", "patent marketer", "patent assertion company", and "patent dealer".

An account of profits (sometimes referred to as an accounting for profits or simply an accounting) is a type of equitable remedy most commonly used in cases of breach of fiduciary duty. It is an action taken against a defendant to recover the profits taken as a result of the breach of duty, in order to prevent unjust enrichment.

In conducting an account of profits, the plaintiff is treated as if they were conducting the business of the defendant, and made those profits which were attributable to the defendant's wrongful actions. This can be rather complex in practice, because the defendant's accounting records must be examined (sometimes by a forensic accountant) to determine what portion of his gross profits were derived from the wrongful act in question. As a result, mathematical exactness is not called for and reasonable approximation is acceptable.

Historically an account was not an equitable remedy, but was an action at common law, and is therefore technically an instrument of law, though it arose at a time before the distinction between law and equity was marked.

Co-owners in concurrent estates also have the right to an accounting of profits, in order to properly apportion income from the use or leasing of the property. The remedy is also available against strangers to a trust who "dishonestly assist" an express trustee in a breach of the trustee's fiduciary duty.

Case law has shown roughly two approaches to assessing the extent of an account of profits:

To account not of the entire business but of the particular benefits which flowed to him in breach of his duty;

To account for the entire business and its profits, due allowance being made for the time, energy, skill and financial contribution of the fiduciary (the approach in Boardman v Phipps).

An injunction is an equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. "When a court employs the extraordinary remedy of injunction, it directs the conduct of a party, and does so with the backing of its full coercive powers." A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment. They can also be charged with contempt of court.

Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as understood in specific contexts may differ from its everyday meaning. For example, a person with a mental disorder, a low mental age, or under the legal age of sexual consent may willingly engage in a sexual act that still fails to meet the legal threshold for consent as defined by applicable law.

United Nations agencies and initiatives in sex education programs believe that teaching the topic of consent as part of a comprehensive sexuality education is beneficial. Types of consent include implied consent, express consent, informed consent and unanimous consent.

Types.

An expression of consent is one that is unmistakably stated, rather than implied. It may be given in writing, by speech (orally), or non-verbally, for example by a clear gesture such as a nod. Non-written express consent not evidenced by witnesses or an audio or video recording may be disputed if a party denies that it was given.

Implied consent is consent inferred from a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). Examples include unambiguously soliciting or initiating sexual activity or the implied consent to physical contact by participants in a hockey game or being assaulted in a boxing match.

Informed consent in medicine is consent given by a person who has a clear appreciation and understanding of the facts, implications, and future consequences of an action. The term is also used in other contexts, such as in social scientific research, when participants are asked to affirm that they understand the research procedure and consent to it, or in sex, where informed consent means each person engaging in sexual activity is aware of any positive statuses (for sexually transmitted infections and or diseases) they might expose themselves to.

Unanimous consent, or general consent, by a group of several parties (for example, an association) is consent given by all parties.

Substituted consent, or the substituted judgment doctrine, allows a decision maker to attempt to establish the decision an incompetent person would have made if they were competent.

In international law, consent involves states, not individuals. Consent is a crucial principle of international law that necessitates the agreement of all relevant parties for any changes in rules to be legally binding. However, some legal scholars propose that a consensus among states, rather than the explicit consent of each state, may be the standard by which a rule is considered obligatory and enforceable.

A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In the Anglo-American common law, the party who entrusts the right is known as the "settlor", the party to whom the right is entrusted is known as the "trustee", the party for whose benefit the property is entrusted is known as the "beneficiary", and the entrusted property itself is known as the "corpus" or "trust property". A testamentary trust is created by a will and arises after the death of the settlor. An inter vivos trust is created during the settlor's lifetime by a trust instrument. A trust may be revocable or irrevocable; an irrevocable trust can be "broken" (revoked) only by a judicial proceeding.

The trustee is the legal owner of the property in trust, as fiduciary for the beneficiary or beneficiaries who are or are the equitable owners of the trust property. Trustees thus have a fiduciary duty to manage the trust to the benefit of the equitable owners. They must provide a regular accounting of trust income and expenditures. Trustees may be compensated and be reimbursed for their expenses. A court of competent jurisdiction can remove a trustee who breaches their fiduciary duty. Some breaches of fiduciary duty can be charged and tried as criminal offenses in a court of law. A trustee can be a natural person, a business entity or a public body. A trust in the United States may be subject to federal and state taxation.

A trust is created by a settlor, who transfers title to some or all of their property to a trustee, who then holds title to that property in trust for the benefit of the beneficiaries. The trust is governed by the terms under which it was created. In most jurisdictions, this requires a contractual trust agreement or deed. It is possible for a single individual to assume the role of more than one of these parties, and for multiple individuals to share a single role. For example, in a living trust it is common for the grantor to be both a trustee and a lifetime beneficiary while naming other contingent beneficiaries.

Trusts have existed since Roman times and have become one of the most important innovations in property law. Trust law has evolved through court rulings differently in different jurisdictions, so statements in this article are generalizations; understanding the jurisdiction-specific case law involved is tricky. Some U.S. states are adapting the Uniform Trust Code to codify and harmonize their trust laws, but state-specific variations still remain.

An owner placing property into trust turns over part of their bundle of rights to the trustee, separating the property's legal ownership and control from its equitable ownership and benefits. This may be done for tax reasons or to control the property and its benefits if the settlor is absent, incapacitated, or deceased. Testamentary trusts may be created in wills, defining how money and property will be handled for children or other beneficiaries.

While the trustee is given legal title to the trust property, in accepting title the trustee owes a number of fiduciary duties to the beneficiaries. The primary duties owed are those of loyalty, prudence and impartiality. Trustees may be held to a very high standard of care in their dealings to enforce their behavior. To ensure beneficiaries receive their due, trustees are subject to a number of ancillary duties in support of the primary duties, including duties of openness and transparency, and duties of recordkeeping, accounting, and disclosure. In addition, a trustee has a duty to know, understand, and abide by the terms of the trust and relevant law. The trustee may be compensated and have expenses reimbursed, but otherwise must turn over all profits from the trust properties and neither endebt nor riskily speculate on the trust assets without the written, clear permission of all of the adult beneficiaries.

A civil union (also known as a civil partnership) is a legally recognized arrangement similar to marriage, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage (with child adoption being a common exception, and the title itself).

Civil unions under one name or another have been established by law in several, mostly developed, countries in order to provide legal recognition of relationships formed by unmarried same-sex couples and to afford them rights, benefits, tax breaks, and responsibilities similar or identical to those of legally married couples. In 1989, Denmark was the first country to legalize civil unions, for same-sex couples; however most other developed democracies did not begin establishing civil unions until the 1990s or early 2000s, often developing them from less formal domestic partnerships. While civil unions are often established for both opposite-sex couples and same-sex couples, in a number of countries they are available to same-sex couples only. In Brazil, civil unions were first created for opposite-sex couples in 2002, and then expanded to include same-sex couples through a supreme court ruling in 2011. In the majority of countries that established same-sex civil unions, they have since been either supplemented or replaced by same-sex marriage. Civil unions are viewed by LGBT rights campaigners as a "first step" towards establishing same-sex marriage, as civil unions are viewed by supporters of LGBT rights as a "separate but equal" or "second class" status.

Many jurisdictions with civil unions recognize foreign unions if those are essentially equivalent to their own; for example, the United Kingdom lists equivalent unions in the Civil Partnership Act 2004 Schedule 20. The marriages of same-sex couples performed abroad may be recognized as civil unions in jurisdictions that only have the latter.

Brand protection is the process and set of actions that a right holder undertakes to prevent third parties from using its intellectual property without permission, as this may cause loss of revenue and, usually more importantly, destroys brand equity, reputation and trust. Brand protection seeks primarily to ensure that trademarks, patents, and copyrights are respected, though other intellectual property rights such as industrial design rights or trade dress can be involved. Counterfeiting is the umbrella term to designate infringements to intellectual property, with the exception of the term piracy which is sometimes (colloquially) used to refer to copyright infringement.

A more narrow definition of brand protection which focuses on trademark infringement, is sometimes used. Counterfeiting of physical goods that involves trademark infringement is indeed one of the predominant forms of intellectual property infringement. However, both copyright and patent infringement are possible without an associated trademark infringement, and both may result in loss of revenue and of brand equity. Eliminating diversion, gray market, or product theft and resale, are generally considered as part of a brand protection strategy, even though an intellectual property may not be necessarily infringed.

A copyright troll is a party (person or company) that enforces copyrights it owns for purposes of making money through strategic litigation, in a manner considered unduly aggressive or opportunistic, sometimes while without producing or licensing the works it owns for paid distribution. Critics object to the activity because they believe it does not encourage the production of creative works, but instead makes money through the inequities and unintended consequences of high statutory damages provisions in copyright laws intended to encourage creation of such works.

Both the term and the concept of a copyright troll began to appear in the mid-2000s. It derives from the pejorative "patent trolls", which are companies that enforce patent rights to earn money from companies that are selling products, without having products of their own for sale. It is distinguished from organizations such as ASCAP, which collect royalties and enforce copyrights of their members.

A constructive trust is an equitable remedy imposed by a court to benefit a party that has been wrongfully deprived of its rights due to either a person obtaining or holding a legal property right which they should not possess due to unjust enrichment or interference, or due to a breach of fiduciary duty, which is intercausative with unjust enrichment and or property interference. It is a type of implied trust (for example, it is created by conduct, not explicitly by a settler).

In the United States (in contrast to England), a constructive trust remedy generally does not recognize or create any continuing fiduciary relationship — that is, a constructive trust is not actually a trust except in name. Rather, it is a fiction declaring that the plaintiff has equitable title to the property at issue, and ordering the defendant to transfer legal ownership and possession to the plaintiff. For instance, in some states the slayer rule is implemented in the form of a constructive trust.

Definition.

Constructive trusts are imposed by operation of law. They are also referred to as implied trusts. They are not subject to formality requirements. Unlike a resulting trust, which also arises by operation of law, a constructive trust does not give effect to the imputed or presumed intention of the parties.

Instead, constructive trusts are largely said to be triggered by unconscionability. This is the idea that a defendant would be unjustly enriched if they were allowed to keep property for themselves. The main issue with this argument is that we would have to have a really broad approach to unjust enrichment in order for a constructive trust to come under that underpinning concept in order for us to understand constructive trust. This statement is incoherent and without any basis in law or fact.

Events generating constructive trusts.

Breach of fiduciary duty.

In a constructive trust the defendant breaches a duty owed to the plaintiff. The most common such breach is a breach of fiduciary duty, such as when an agent wrongfully obtains or holds property owned by a principal. A controversial example is the case of Attorney General for Hong Kong v Reid, in which a senior prosecutor took bribes not to prosecute certain offenders. With the bribe money, he purchased property in New Zealand. His employer, the Attorney-General, sought a declaration that the property was held on constructive trust for it, on the basis of breach of fiduciary duty. The Privy Council awarded a constructive trust. The case is different from Regal (Hastings) Ltd v Gulliver, because there was no interference with a profit-making opportunity that properly belonged to the prosecutor.

Being a Privy Council decision, Reid did not overrule the previous decision of the Court of Appeal of England and Wales in Lister v Stubbs which held the opposite, partially because a trust is a very strong remedy that gives proprietary rights to the claimant not enjoyed by the defendant's other creditors. In the event of the defendant's insolvency, the trust assets are untouchable by the general creditors. Supporters of Lister suggested that there was no good reason to put the victim of wrongdoing ahead of other creditors of the estate. There was a tension in English law between Lister and Reid which was highlighted in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd. The United Kingdom Supreme Court subsequently overruled Sinclair in FHR European Ventures LLP v Cedar Capital Partners LLC, holding that Lister was no longer a good law.

Sleep.

The Australian Model Criminal Code Committee states the law as follows:

At the minimum there needs to be some operation of the will before a physical movement is described as an act. The physical movements of a person who is asleep, for example, probably should not be regarded as acts at all, and certainly should not be regarded as acts for the purposes of criminal responsibility. These propositions are embodied in the rule that people are not held responsible for involuntary 'acts', that is, physical movements which occur without there being any will to perform that act. This situation is usually referred to as automatism.

In the U.S., People v Huey Newton (1970) holds that unconsciousness, when not self-induced (say, as by voluntary intoxication), is a complete defense to a criminal act even though the defendant's acts seem very goal-oriented. The medical evidence was that " gunshot wound which penetrates in a body cavity, the abdominal cavity or the thoracic cavity is very likely to produce a profound reflex shock reaction, that is quite different from a gunshot wound which penetrates only skin and muscle and it is not at all uncommon for a person shot in the abdomen to lose consciousness and go into this reflex shock condition for short periods of time up to half an hour or so." But the reflexive activity or unconsciousness need not cause physical collapse: it can exist where the subject physically acts in fact, but is not at the time conscious of acting (cf some European continental jurisdictions classify conduct resulting from automatism under the rubric of unconsciousness). In R v Cogdon (1950), unreported but noted in Morris, Somnambulistic Homicide: Ghosts, Spiders and North Koreans (1951), the defendant struck her daughter on the head with an ax while sleepwalking and dreaming about North Koreans. Her movements were not voluntary, so she was acquitted. This interpretation of automatism is consistent with Lord Denning's dicta in Bratty v Attorney-General for Northern Ireland (1963):

No act is punishable if it is done involuntarily: and an involuntary act in this context – some people nowadays prefer to speak of it as 'automatism' – means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from a concussion or whilst sleepwalking.

Situations involving hypnotism, concussion, and sleepwalking may involve apparently deliberate and purposeful conduct. In fact this is the case for many situations where the defense of automatism is presented – spasms or reflex actions are rarely likely to be perceived as criminally liable acts. As for sleepwalking itself, the Canadian case of R v Parks exemplifies a certain judicial willingness to regard a sleepwalker as behaving as an automaton even though he had performed apparently goal-directed acts. The accused fell asleep in his living room. A few hours later he got up and drove 23 kilometers to his in-laws' home. Still asleep, he entered the house, found a knife in the kitchen and went to the bedroom where his in-laws were sleeping. He strangled and cut his father in-law, who survived the attack. The mother in-law died from the repeated stab wounds and the brutal beating. The medical experts at trial unanimously agreed that the accused was sleepwalking and that sleepwalking was not a "disease of mind". The Supreme Court agreed and held that sleepwalking can negate the voluntary ingredient of the actus reus. There is widespread disagreement among forensic sleep experts that Kenneth Parks was in fact sleepwalking – it is not entirely clear the reason why the prosecution did not call its own experts on sleepwalking, one explanation being frank disbelief that the defense could succeed.

An elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will. It may also be called a widow's share, statutory share, election against the will, or forced share.

Function and operation.

The elective share is the modern version of the English common law concepts of dower and curtesy, both of which reserved certain portions of a decedent's estate which were reserved for the surviving spouse to prevent them from falling into poverty and becoming a burden on the community.

Currently, the amount to be reserved for a spouse is determined by the law of the state where the estate is located. In most states, the elective share is between one-third and one-half of all the property in the estate, although many states require the marriage to have lasted a certain number of years for the elective share to be claimed, or adjust the share based on the length of the marriage, and the presence of minor children. Some states also reduce the elective share if the surviving spouse is independently wealthy.

In some jurisdictions, if the spouse claims the elective share, they get that amount, but nothing else from the estate. In other states, claiming an elective share has no effect on gifts under a will or through a trust (though things given by will or trust may fulfill in part the elective share portion). Obviously, there would be no point in seeking an elective share if the surviving spouse has already been willed more than they would receive under the statute. Furthermore, some assets held by the estate may be exempt from becoming part of the elective share, so their value is subtracted from the total value of the estate before the elective share is calculated.

Some states also permit children of the deceased to claim an elective share.

Pretermitted heir.

In the law of property, a pretermitted heir is a person who would likely stand to inherit under a will, except that the testator (the person who wrote the will) did not include the person in the testator's will. Omission may occur because the testator did not know of the omitted person at the time the will was written.

A will may contain a clause that explicitly disinherits any heirs unknown at the time that the will is executed, or any heirs not named in the will. While such a clause will not necessarily prevent a claim against an estate by a pretermitted heir, it may make it more difficult to succeed in such an action.

Forced heirship is a form of testate partible inheritance which mandates how the deceased's estate is to be disposed of and which tends to guarantee an inheritance for the family of the deceased.

In forced heirship, the estate of a deceased (de cujus) is separated into two portions. (1) An indefeasible portion, the forced estate (passing to the deceased's next-of-ki. (2) A discretionary portion, or free estate, to be freely disposed of by will. Forced heirship is generally a feature of civil-law legal systems which do not recognize total freedom of testation, in contrast with common law jurisdictions.

Normally in forced heirship, the deceased's estate is in-gathered and wound up without discharging liabilities, which means accepting inheritance includes accepting the liabilities attached to inherited property. The forced estate is divided into shares which include the share of issue (legitime or child's share) and the spousal share. This provides a minimum protection that cannot be defeated by will. The free estate, on the other hand, is at the discretion of a testator to be distributed by will on death to whomever he or she chooses. Takers in the forced estate are known as forced heirs.

The expression comes from Louisianan legal language and is ultimately a calque of Spanish sucesión forzosa.

Common-law marriage, also known as non-ceremonial marriage, sui iuris marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a legal framework where a couple may be considered married without having formally registered their relation as a civil or religious marriage.

The original concept of a "common-law marriage" is one considered valid by both partners, but not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. In effect, the act of the couple representing themselves to others as being married and organizing their relationship as if they were married, means they are married.

The term common-law marriage (or similar) has wider informal use, often to denote relations that are not legally recognized as marriages. It is often used colloquially or by the media to refer to cohabiting couples, regardless of any legal rights or religious implications involved. This can create confusion in regard to the term and to the legal rights of unmarried partners (in addition to the actual status of the couple referred to).

Terminology.

Common-law marriage is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. The marriage occurs when two people who are legally capable of being married, and who intend to be married, live together as a married couple and hold themselves out to the world as a married couple.

Common-law marriage vs. cohabitation.

The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation (whether or not registered) or other legally formalized relations. Although these interpersonal relationships are often called "common-law marriage", they differ from its original meaning in that they are not legally recognized as "marriages" but are a parallel interpersonal status such as a "domestic partnership", "registered partnership", "conjugal union" or "civil union". Non-marital relationship contracts are not necessarily recognized from one jurisdiction to another.

In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be legally defined as "unmarried spouses" and for many purposes such as taxes and financial claims, and within those contexts treated the same as married spouses.

A 2008 poll in the UK showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples.

In Scotland, common-law marriage does not exist, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute' which could apply to couples in special circumstances until 2006, and was abolished by the Family Law (Scotland) Act 2006 (irregular marriages established before 4 May 2006 are recognised).

Those who oppose these practices argue that distribution denies the copyright holder potential sales, in the form of re-released titles, official emulation, and so on. Likewise, they argue that if people can acquire an old version of a program for free, they may be less likely to purchase a newer version if the old version meets their needs.

From game developers with sympathy with abandonware.

Some game developers showed sympathy for abandonware websites as they preserve their classical game titles.

In this quote Richard Garriott states, “Personally, I think that sites that support these old games are a good thing for both consumers and copyright owners. If the options are (a) having a game be lost forever and (b) having it available on one of these sites, I'd want it to be available. That being said, I believe a game is 'abandoned' only long after it is out of print. And just because a book is out of print does not give me rights to print some for my friends.”

In this quote Tim Schafer states, “Is it piracy? Yeah, sure. But so what? Most of the game makers aren't living off the revenue from those old games anymore. Most of the creative teams behind all those games have long since left the companies that published them, so there's no way the people who deserve to are still making royalties off them. So go ahead—steal this game! Spread the love!”

In this quote Chris Taylor states, “If I owned the copyright on Total Annihilation, I would probably allow it to be shared for free by now (four years after it was originally released)”

Law.

In most cases, software classed as abandonware is not in the public domain, as it has never had its original copyright officially revoked and some company or individual may still own rights. While sharing of such software is usually considered copyright infringement, in practice copyright holders rarely enforce their abandonware copyrights for a number of reasons – chiefly among which the software is technologically obsolete and therefore has no commercial value, therefore rendering copyright enforcement a pointless enterprise. By default, this may allow the product to de facto lapse into the public domain to such an extent that enforcement becomes impractical.

Rarely has any abandonware case gone to court, but it is still unlawful to distribute copies of old copyrighted software and games, with or without compensation, in any Berne Convention signatory country.

Enforcement of copyright.

Old copyrights are usually left undefended. This can be due to intentional non-enforcement by owners due to software age or obsolescence, but sometimes results from a corporate copyright holder going out of business without explicitly transferring ownership, leaving no one aware of the right to defend the copyright.

Even if the copyright is not defended, copying of such software is still unlawful in most jurisdictions when a copyright is still in effect. Abandonware changes hands on the assumption that the resources required to enforce copyrights outweigh benefits a copyright holder might realize from selling software licenses. Additionally, abandonware proponents argue that distributing software for which there is no one to defend the copyright is morally acceptable, even where unsupported by current law. Companies that have gone out of business without transferring their copyrights are an example of this; many hardware and software companies that developed older systems are long since out of business and precise documentation of the copyrights may not be readily available.

Often the availability of abandonware on the Internet is related to the willingness of copyright holders to defend their copyrights. For example, unencumbered games for Colecovision are markedly easier to find on the Internet than unencumbered games for Mattel Intellivision in large part because there is still a company that sells Intellivision games while no such company exists for the Colecovision.

Equitable remedies are judicial remedies developed by courts of equity from about the time of Henry the 8th to provide more flexible responses to changing social conditions than was possible in precedent-based common law.

Equitable remedies were granted by the Court of Chancery in England, and remain available today in most common law jurisdictions. In many jurisdictions, legal and equitable remedies have been merged and a single court can issue either, or both, remedies. Despite widespread judicial merger, the distinction between equitable and legal remedies remains relevant in a number of significant instances. Notably, the United States Constitution's Seventh Amendment preserves the right to a jury trial in civil cases over $20 to cases "at common law".

Equity is said to operate on the conscience of the defendant, so an equitable remedy is always directed at a particular person, and that person's knowledge, state of mind and motives may be relevant to whether a remedy should be granted or not.

Equitable remedies are distinguished from "legal" remedies (which are available to a successful claimant as of right) by the discretion of the court to grant them. In common law jurisdictions, there are a variety of equitable remedies, but the principal remedies are:

injunction,

specific performance,

account of profits,

rescission,

rectification,

equitable estoppel,

certain proprietary remedies, such as constructive trusts,

subrogation,

in very specific circumstances, an equitable lien,

equitable compensation,

appointment or removal of fiduciary,

Interpleader and

equitable tracing as a remedy for unjust enrichment.

Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract. It is typically available in the sale of land law, but otherwise is not generally available if damages are an appropriate alternative. Specific performance is almost never available for contracts of personal service, although performance may also be ensured through the threat of proceedings for contempt of court.

An injunction, often concerning confidential information or real property, is a type or subset of specific performance and is one of the more commonly-used forms of specific performance. While specific performance can be in the form of any type of forced action, it is usually to complete a previously established transaction, thus being the most effective remedy in protecting the expectation interest of the innocent party to a contract. It is usually the opposite of a prohibitory injunction, but there are mandatory injunctions that have a similar effect to specific performance and these kinds of distinctions are often difficult to apply in practice or even illusory.

At common law, a claimant's rights were limited to an award of damages. Later, the court of equity developed the remedy of specific performance instead, should damages prove inadequate. Specific performance is often guaranteed through the remedy of a right of possession, giving the plaintiff the right to take possession of the property in dispute.

As with all equitable remedies, orders of specific performance are discretionary, so their availability depends on its appropriateness in the circumstances. Such orders are granted when damages are not an adequate remedy and in some specific cases such as land (which is regarded as unique).

In criminal law, automatism is a rarely used criminal defense. It is one of the mental condition defenses that relate to the mental state of the defendant. Automatism can be seen variously as lack of voluntariness, lack of culpability (unconsciousness) or excuse. Automatism means that the defendant was not aware of his or her actions when making the particular movements that constituted the illegal act.

For example, Esther Griggs in 1858 threw her child out of a first floor window believing that the house was on fire, while having a sleep terror. In 2002, Peter Buck, lead guitarist of the band R E M, was cleared of several charges, including assault, which resulted from automatism brought on by a bad interaction between alcohol and sleeping pills. In a 2009 case in Aberporth in west Wales, Brian Thomas strangled his wife in their camper van, also during a sleep terror, when he mistook his wife for an intruder. The defense of automatism is denying that the person was acting in the sense that the criminal law demands. As such it is really a denial-of-proof – the defendant is asserting that the offense is not made out. The prosecution does not have to disprove the defense as is sometimes erroneously reported; the prosecution has to prove all the elements of the offense including the voluntary act requirement. Automatism is a defense even against strict liability crimes like dangerous driving, where no intent is necessary.

There are several limitations to the defense of automatism in English law. Prior fault generally excludes automatism. Intoxication generally excludes automatism, even when involuntary. Any defense that rests on insanity comes under the M'Naghten rules. Under English law internal causes of automatism are generally judged to be insane automatism and so result in the special verdict (not guilty by reason of insanity) rather than simple acquittal.

Scope.

Automatism is arguably the only defense that excludes responsibility by negating the existence of the actus reus which uniquely allows it to be a defense to both conventional and strict liability offenses (although this argument could be extended to the status defense of insanity, too). Strict automatism is a denial of actus reus and therefore most commonly used as a defense against strict liability offenses. There are a number of reasons why a person may go into a state of automatism, including dissociation or hypo or hyperglycemia. Unconsciousness is the defense of denial of mens rea, which is easier to prove and hence more commonly used for non-strict liability crimes. For example, in cases of homicidal sleepwalking the illegal act is typically not denied but the intent to kill is. The defendant will typically be perplexed and confused and will not cover up the episode. Kenneth Parks, after killing his mother-in-law and severely injuring his father-in-law, drove to the police station stating that he thought he had killed some people. The person's movements seem purposeful - the sleepwalker interacts with their environment in a limited way. Nonetheless the sleepwalker is not conscious of their actions. The use of the term "automatism" for these situations causes some confusion, as in these cases it is really the lack of intent on the part of the defendant which denies the mens rea of the offense rather than the actus reus (although this distinction is problematic in many instances), better called "unconsciousness". Intention is a problem in crimes of strict liability. Very few people intend to crash their vehicles, so clearly something better than intent is required to define automatism.

Lapse and anti-lapse.

Lapse and anti-lapse are complementary concepts under the US law of wills, which address the disposition of property that is willed to someone who dies before the testator (the writer of the will).

Lapse.

At common law, lapse occurs when the beneficiary or the devisee under the will predeceases the testator, invalidating the gift. The gift would instead revert to the residuary estate or be granted under the law of intestate succession. Anti-lapse statutes.

Most common-law jurisdictions have enacted an anti-lapse statute to address this situation. The anti-lapse statute "saves" the bequest if it has been made to parties specified in the statute, usually members of the testator's immediate family, if they had issues that survived the testator. For example, the New York anti-lapse statute specifies brothers, sisters, and issue, specifically. If the anti-lapse statute does indeed apply, then the issue of the deceased beneficiary will inherit whatever was willed to the beneficiary. The testator can prevent the operation of an anti-lapse statute by providing that the gift will only go to the named beneficiary if that beneficiary survives the testator, or by simply stating in the will that the anti-lapse statute does not apply.

Ademption, or ademption by extinction.

Ademption, or ademption by extinction, is a common law doctrine used in the law of wills to determine what happens when property bequeathed under a will is no longer in the testator's estate at the time of the testator's death. For a devise (bequest) of a specific item of property (a specific gift), such property is considered adeemed, and the gift fails. For example, if a will bequeathed the testator's car to a specific beneficiary, but the testator owned no car at the time of his or her death, the gift would be adeemed and the aforementioned beneficiary would receive no gift at all.

Abatement of debts and legacies.

Abatement of debts and legacies is a common law doctrine of wills that holds that when the equitable assets of a deceased person are not sufficient to satisfy fully all the creditors, their debts must abate proportionately, and they must accept a dividend.

Ademption by satisfaction.

Ademption by satisfaction, also known as satisfaction of legacies, is a common law doctrine that determines the disposition of property under a will when the testator has made lifetime gifts to beneficiaries named in the will. Under the doctrine, a gift that the maker of the will (the testator) gives during his lifetime to a named beneficiary of the will is treated as an advance payment of that beneficiary's inheritance. If the probate court determines that the testator intended the lifetime gift to satisfy a bequest under the will, the amount of the lifetime gift is deducted from the amount that the beneficiary would have received under the will.

Acts of independent significance.

The doctrine of acts of independent significance at common law permits a testator to effectively change the disposition of his property without changing a will, if acts or events changing the disposition have some significance beyond avoiding the requirements of the will.

Abuse and infidelity.

University of Chicago sociologist Linda Waite found that "16 percent of cohabiting women reported that arguments with their partners became physical during the past year, while only 5 percent of married women had similar experiences." Most cohabiting couples have a faithful relationship, but Waite's surveys also demonstrated that 20% of cohabiting women reported having secondary sex partners, compared to only 4% of married women.

According to an article by Judith Treas and Deirdre Giesen, cohabiting couples are twice as likely to experience infidelity within the relationship than married couples.

Fertility.

Regarding cohabitation as a fertility factor, a large survey in the United States came to the result that married women had an average of 1.9 children, compared to 1.3 among those cohabiting. The corresponding numbers for men were 1.7 and 1.1, respectively. The difference of 0.6 children for both sexes was expected to decrease to between 0.2 and 0.3 over the lifetime when correcting for the confounder that married people have their children earlier in life.

A study of the United States and multiple countries in Europe came to the result that women who continue to cohabit after birth have significantly lower probability of having a second child than married women in all countries except those in Eastern Europe. Another study, on the contrary, came to the result that cohabiting couples in France have equal fertility as married ones. Also, Russians have a higher fertility within cohabitation, while Romanians rather tend to have childless marriages.

Survey data from 2003 in Romania came to the result that marriage equalized the total fertility rate among both highly educated and low educated people to approximately 1.4. Among those cohabiting, on the other hand, a lower level of education increased fertility rate to 1.7, and a higher level of education decreased it to 0.7. On the other hand, another study came to the result that Romanian women with little education have about equal fertility in marital and cohabiting partnerships.

Financial effects.

In the United States, married couples that submit a combined tax return may face a marriage penalty, where tax credits for low-income single earners are not applied to the combined income. In October 1998, Senate GOP leader Trent Lott decided to pull a bill to abolish "the marriage penalty," "which in the tax code reflects the fact that married couples who both work for wages frequently pay more in taxes than if they earned the same amount of income but weren't married. And the more equal the incomes of the couple, the steeper the marriage tax penalty." The earned income tax credit (EITC) is cash welfare for low-income workers, but the problem is the EITC is not for married couples because they have to combine their wages, which again leads to "the marriage penalty." If couples do not get married then their wages do not have to combine and the EITC in a way is "paying for" low-income couples not to marry. Opponents of cohabitation believe that some cohabiting couples choose not to marry because they would suffer a tax penalty.

Despite the perceived disincentive to marry that the EITC provides, cohabiting couples suffer many financial losses as their unions are not recognized with the same legal and financial benefits as those who are legally married. These financial penalties can include the costs of separate insurance policies and the costs of setting up legal protections similar to those that are automatically granted by the state upon marriage.

Abandonware is a product, typically software, ignored by its owner and manufacturer, and for which no official support is available.

Within an intellectual rights contextual background, abandonware is a software (or hardware) sub-case of the general concept of orphan works. Museums and various organizations dedicated to preserving this software continue to provide legal access.

The term "abandonware" is broad, and encompasses many types of old software. Definitions of "abandoned" vary, but in general it is like any item that is abandoned – it is ignored by the owner, and as such product support and possibly copyright enforcement are also "abandoned".

Types.

Commercial software unsupported but still owned by a viable company

The availability of the software depends on the company's attitude toward the software. In many cases, the company which owns the software rights may not be that which originated it, or may not recognize their ownership. Some companies, such as Borland, make some software available online, in a form of freeware. Others, such as Microsoft, do not make old versions available for free use and do not permit people to copy the software.

Commercial software owned by a company no longer in business.

When no owning entity of a software exists, all activities (support, distribution, IP activities, etcetera) in relation to this software have ceased. If the rights to a software are non-recoverable in legal limbo ("orphaned work"), the software's rights cannot be bought by another company, and there is no company to enforce the copyright. An example of this is Digital Research's original PLI compiler for DOS: which was considered for many years as without an owner; Micro Focus, which acquired Novell, which had bought Digital Research's assets, owns this old PLI compiler, but has a more up-to-date PLI offering.

Shareware whose author still makes it available.

Finding historical versions, however, can be difficult since most shareware archives remove past versions with the release of new versions. Authors may or may not make older releases available. Some websites collect and offer for download old versions of shareware, freeware, and (in some cases) commercial applications. In some cases these sites had to remove past versions of software, particularly if the company producing that software still maintains it, or if later software releases introduce digital rights management, whereby old versions could be viewed as DRM circumvention.

Unsupported or unmaintained shareware.

Open source and freeware programs that have been abandoned.

In some cases, source code remains available, which can prove a historical artifact. One such case is PC-LISP, still found online, which implements the Franz Lisp dialect. The DOS-based PC-LISP still runs well within emulators and on Microsoft Windows.

Orphaned code.

The source code or executable might still be available but the author is unknown or only identified by a dead email or equivalent and there is no realistic prospect of finding the owner of the IP.

Reliance damages is the measure of compensation given to a person who suffered an economic harm for acting in reliance on a party who failed to fulfill their obligation. If the injured party could go back in time, they should be indifferent to entering into the contract that would be breached and receiving the reliance damages as opposed to not entering into any contract with the breaching party. The injured party should be put in a substantially similar situation position as they would have been had the contract not been entered into. This is different from expectation damages, where the injured party should be indifferent between the fulfillment of the contract and never having entered into the contract.

Scope.

Reliance damages are valued by a party's reliance interest for the reasonably foreseeable amount. They put the injured party in the same financial position as if the contract had never been formed.

Reliance interest is one of the three prongs of interest discussed by legal experts Lou Fuller and William Perdue in their 1936 article, "The Reliance Interest in Contract Damages." The other two interests are expectation interest and restitution interest.

Application.

Under contract law, in a bilateral contract two or more parties owe obligations to each other. Each party acts in reliance that the other party will fulfill their respective obligation. If one party fails to fulfill their obligation, then the other party may suffer economic harm. Reliance damages compensate the harmed party for the amount of damages they suffered for acting in reliance on the other party's contractual obligations. They are most often rewarded when the aggrieved party's damages are not capable of accurate estimation and ordering Specific Performance would be inappropriate. Specific performance should never be associated with reliance damages, as specific performance is almost never purely financial, and reliance damages are generally a purely financial remedy.

Reliance damages may be differentiated from restitution damages in the context of partial performance. Restitution damages may be invoked when the injured party confers a benefit upon a breaching party, and the breaching party does not fulfill their obligations with the benefit provided by the injured party. If reliance damages are to be invoked, the injured party has generally not conveyed a particular benefit to the breaching party; rather the injured party put themselves in a vulnerable situation in reliance on an action from a breaching party, and that breaching party allowed the injured party to suffer harm as a result of the breaching party's action or inaction.

However, it must be reasonably foreseeable to the breaching party that the injured party would be harmed by the breaching party's behavior. If the injured party takes unreasonable action that irrationally relies on a behavior from the breaching party, a court may decide that an injured party may not warrant reliance damages from the breaching party.

In US law, reliance damages are the type of damages awarded in promissory estoppel claims, although they can also be awarded in traditional contract breaches. This is appropriate because even if there is no bargain principle in the agreement, one party has relied on a promise and thus is damaged to the extent of their reliance. These damages must be proven with reasonable certainty. It is not enough that one party simply guess as to how much they are actually damaged.

In a losing contract, reliance damages will be reduced because the aggrieved party cannot be put in a better position had the contract been performed. Here, the losses from the contract will be subtracted from the reliance damages.

In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a suit or action brought against the party, and may be based on legal grounds or on factual claims.

Besides contesting the accuracy of an allegation made against the defendant in the proceeding, the defendant may also make allegations against the prosecutor or plaintiff or raise a defense, arguing that, even if the allegations against the defendant are true, the defendant is nevertheless not liable. Acceptance of a defense by the court completely exonerates the defendant and not merely mitigates the liability.

The defense phase of a trial occurs after the prosecution phase, that is, after the prosecution "rests". Other parts of the defense include the opening and closing arguments and the cross-examination during the prosecution phase.

Since a defense is raised by the defendant in a direct attempt to avoid what would otherwise result in liability, the defendant typically holds the burden of proof. For example, a defendant who is charged with assault may claim provocation, but they would need to prove that the plaintiff had provoked the defendant.

Common law defenses.

In common law, a defendant may raise any of the numerous defenses to limit or avoid liability. These include:

Lack of personal or subject matter jurisdiction of the court, such as diplomatic immunity. (In law, this is not a defense as such but an argument that the case should not be heard at all.)

Failure to state a cause of action or other insufficiencies of pleading.

Any of the affirmative defenses.

Defenses conferred by statute – such as a statute of limitations or the statute of frauds.

Ex turpi causa non oritur actio – the action against the defendant arises from an illegality.

Volenti non fit injuria – consent by the victim or plaintiff.

In pari delicto – both sides equally at fault.

Act of God is an unforseable natural phenomenon which involves no human agency due directly to natural causes which cannot be foreseen.

Necessity harm done to prevent a greater evil is not actionable even though the harm was caused intentionally.

Mistake whether of fact or of law is no defense to action.

The law permits use of reasonable force to protect one's person or property. If force is used for self-defense they will not be liable for harm.

Unclean hands.

In addition to defenses against prosecution and liability, a defendant may also raise a defense of justification – such as self-defense and defense of others or defense of property.

In English law, one could raise the argument of a contramandatum, which was an argument that the plaintiff had no cause for complaint.

Insane delusion is the legal term of art in the common law tradition used to describe a false conception of reality that a testator of a will adheres to against all reason and evidence to the contrary. A will made by a testator suffering from an insane delusion that affects the provisions made in the will may fail in whole or in part. Only the portion of the will caused by the insane delusion fails, including potentially the entire will. Will contests often involve claims that the testator was suffering from an insane delusion.

An insane delusion is distinct from testamentary capacity. A testator might be suffering from an insane delusion but otherwise possesses the requisite capacity to make a will. Similarly, an insane delusion is distinct from a mere mistake. If suffering from an insane delusion, a testator is not subject to change his or her mind regarding the delusion if presented with contrary evidence, whereas a mistake is capable of being corrected if the testator is told the truth. Additionally, while an insane delusion may cause portions of a will to fail, most courts will not reform or invalidate a will because of a mistake unless it was the result of fraud.

Origin.

The insane delusion concept was created in the 1826 British case Dew v Clark. In that case, a father believed that his daughter was "the devil incarnate" and disinherited her in his will of 1818. After her father's death, evidence presented by the daughter showed that she was well known for her good disposition and that her father had falsely told others that he lavished his daughter with praise and wealth. The probate court found that the father's mindset when he made the 1818 will was normal in all respects except toward his daughter. The court found that his thoughts about her, "did and could only proceed from, and be founded in, insanity," a "partial insanity" that only extended to his thoughts about his daughter and caused him to disinherit her. The court said that this delusion caused the will to fail.

Examples.

In the 1854 case Addington v Wilson, the Indiana Supreme Court held that a testator who disinherited his daughters because he believed them to be witches was not for that reason alone so insane as to deem him incapable of making a valid will. The court justified its decision by pointing to distinguished jurists and religious figures who affirmed the possibility of witchcraft; if these people's beliefs did not render them insane, neither did the testator's.

In In re Robertson's Estate (1948), the Supreme Court of Oklahoma held that a testator who declared that he had "no children" and "no deceased children" in his will, when he actually had two living children, was suffering from an insane delusion, as the testator had "no rational basis whatsoever" to declare that he had no children.

Cohabitation is an arrangement where people who are not married, usually couples, live together. They are often involved in a romantic or sexually intimate relationship on a long-term or permanent basis. Such arrangements have become increasingly common in Western countries since the late 20th century, being led by changing social views, especially regarding marriage, gender roles and religion.

More broadly, the term cohabitation can mean any number of people living together. To "cohabit", in a broad sense, means to "coexist". The origin of the term comes from the mid 16th century, from the Latin cohabitare, from co- 'together' + habitare 'dwell'.

Social changes leading to increase.

In Europe, the Scandinavian countries have been the first to start this leading trend, although many countries have since followed. Mediterranean Europe has traditionally been very conservative, with religion playing a strong role. Until the mid-1990s, cohabitation levels remained low in this region, but have since increased.

During the past decades, in Western countries, there has been an increase in unmarried couples cohabiting. Historically, many Western countries have been influenced by Christian doctrines on sex, which opposes unmarried cohabitation. As social norms have changed, such beliefs have become less widely held by the population and some Christian denominations today view cohabitation as a precursor to marriage. Pope Francis has married a cohabiting couple who had children, while former Archbishop of Canterbury Rowan Williams and the Archbishop of York John Sentamu have expressed tolerance of cohabitation.

In recent decades high rates of participation of women in the workforce, and the widespread availability of highly effective long acting reversible contraceptives has led to women making individual choices over their reproduction with decreased reliance on male partners for financial stability. All these changes favored living arrangement alternatives to marriage.

In Central and Eastern Europe, during the late 1980s and early 1990s, there were major political changes, such as the fall of Communist governments. These societies entered a new era of increased social freedom, less rigid rules, and less authoritarian governments. They interacted with Western Europe and some became members of the European Union. As a result, the patterns of family life have started to change: marriage rates have declined, and marriage was postponed to a later age. Cohabitation and births to unmarried mothers increased, and in some countries the increase was very quick.

The deinstitutionalization of marriage refers to the weakening of the social and legal norms that regulate peoples' behavior in regard to marriage. The rise in cohabitation is part of other major social changes such as: higher divorce rate, older age at first marriage and childbearing, and more births outside marriage. Factors such as secularization, increased participation of women in the labor force, changing in the meaning of marriage, risk reduction, individualism, and changing views on sexuality have been cited as contributing to these social changes. There has also been a change in modern sexual ethics, with a focus on consent, rather than marital status (for example decriminalization of adultery and fornication; criminalization of marital rape), reflecting new concepts about the role and purpose of sexual interaction, and new conceptualizations of female sexuality and of self-determination. There have been objections against the legal and social regulation of female sexuality; with such regulations being often seen as violations of women's rights.

Domain names.

The advent of the domain name system has led to attempts by trademark holders to enforce their rights over domain names that are similar or identical to their existing trademarks, particularly by seeking control over the domain names at issue. As with dilution protection, enforcing trademark rights over domain name owners involves protecting a trademark outside the obvious context of its consumer market, because domain names are global and not limited by goods or service.

This conflict is easily resolved when the domain name owner actually uses the domain to compete with the trademark owner. Cybersquatting, however, does not involve competition. Instead, an unlicensed user registers a domain name identical to a trademark and offers to sell the domain to the trademark owner. Typosquatters—those registering common misspellings of trademarks as domain names—have also been targeted successfully in trademark infringement suits. "Gripe sites", on the other hand, tend to be protected as free speech, and are therefore more difficult to attack as trademark infringement.

This clash of the new technology with pre-existing trademark rights resulted in several high-profile decisions as the courts of many countries tried to coherently address the issue (and not always successfully) within the framework of existing trademark law. As the website itself was not the product being purchased, there was no actual consumer confusion, and so initial interest confusion was a concept applied instead. Initial interest confusion refers to customer confusion that creates an initial interest in a competitor's "product" (in the online context, another party's website). Even though initial interest confusion is dispelled by the time any actual sales occur, it allows a trademark infringer to capitalize on the goodwill associated with the original mark.

Several cases have wrestled with the concept of initial interest confusion. In Brookfield Communications, Incorporated v West Coast Entertainment Corporation the court found initial interest confusion could occur when a competitor's trademarked terms were used in the HTML metatags of a website, resulting in that site appearing in the search results when a user searches on the trademarked term. In Playboy Netscape, the court found initial interest confusion when users typed in Playboy's trademarks into a search engine, resulting in the display of search results alongside unlabeled banner ads, triggered by keywords that included Playboy's marks, that would take users to Playboy's competitors. Though users might ultimately realize upon clicking on the banner ads that they were not Playboy-affiliated, the court found that the competitor advertisers could have gained customers by appropriating Playboy's goodwill since users may be perfectly happy to browse the competitor's site instead of returning to the search results to find the Playboy sites.

In Lamparello v Falwell, however, the court clarified that a finding of initial interest confusion is contingent on financial profit from said confusion, such that, if a domain name confusingly similar to a registered trademark is used for a non-trademark related website, the site owner will not be found to have infringed where they do not seek to capitalize on the mark's goodwill for their own commercial enterprises.

Incidental damages.

Incidental damages refers to the type of legal damages that are reasonably associated with, or related to, actual damages.

In American commercial law, incidental damages are a seller's commercially reasonable expenses incurred in stopping delivery or in transporting and caring for goods after a buyer's breach of contract, (UCC Sec. 2-710) or a buyer's expenses reasonably incurred, for example, searching for and obtaining substitute goods. (UCC Sec. 2-715(1)).

Consequential damages.

Consequential damages, otherwise known as special damages, are damages that can be proven to have occurred because of the failure of one party to meet a contractual obligation, a breach of contract. From a legal standpoint, an enforceable contract is present when it is: expressed by a valid offer and acceptance, has adequate consideration, mutual assent, capacity, and legality. Consequential damages go beyond the contract itself and into the actions that arise from the failure to fulfill. The type of claim giving rise to the damages, such as whether it is a breach of contract action or tort claim, can affect the rules or calculations associated with a given type of damages. For example, consequential damages are a potential type of expectation damages that arise in contract law.

When a contract is breached, the recognized remedy for an owner is recovery of damages that result directly from the breach (also known as "compensatory damages"). Damages may include the cost to repair or complete the work in accordance with the contract documents, or the value of lost or damaged work. In addition to the compensatory damage, an owner can also seek for consequential damages (sometimes referred to as "indirect" or "special" damages), which include loss of product and loss of profit or revenue. This may be recovered if it is determined such damages were reasonably foreseeable or "within the contemplation of the parties" at the time of contract formation. This is a factual determination that could lead to the contractor's liability for an enormous loss. For example, the cost to complete unfinished work on time may pale in comparison to the loss of operating revenue an owner might claim as a result of late completion. In order to seek consequential damages, a party who has suffered physical injury, property damage, or financial loss needs to perform a duty to mitigate damages, which means that they have an obligation to reduce or minimize the effect and any losses resulting from the injury.

The degree of proof required for the consequential damages is also higher than for the direct damages. Consequential damages must also be pled with greater specificity. The plaintiff has it on their burden to prove that the damages occurred are not only the proximate consequence of the breach, but also that they were "reasonably foreseeable" or within the "contemplation of the parties" when the parties agreed to the terms of the contract. The logic for proving foreseeability is that a party who can foresee the consequences of a breach of a contract can modify the contract price accordingly to compensate for the risk that is assumed. Further, in order to recover damages caused by a breach, the non-breaching party must act reasonably and timely to mitigate its damages.

The Supreme Court of the United States has held in United States v 50 Acres of Land that consequential damages are not available in the U.S. Federal takings.

Economics.

Economics can be both a tool of the internal and external subversive. For the external subversive, simply cutting off credit can cause severe economic problems for a country. An example of this is the United States' relations with Chile in the early 1970s. In an attempt to get Salvador Allende removed from office, the United States tried to weaken the Chilean economy. Chile received little foreign investments and the loss of credit prevented Chile from purchasing vital imports. Economic pressure of this kind prevents an economy from functioning and reduces a country's standard of living. If the reduction is too great, the people may become willing to support a change in the government's leadership. The main objective of economic pressures is to make it difficult for the country to fulfill its basic obligations to the citizenry either by cutting off trade or by depriving it of resources.

The internal subversive can also use economics to put pressure on the government through use of the strike. An example of this is the Chilean Truckers’ Strike during the 1970s. The strike prevented the transport of food staples and forced nearly 50% of the national economy to cease production. Activities of these kinds create human, economic, and political problems that, if not addressed, can challenge the competency of the government.

Agitation and civil unrest.

As defined by Laurence Beilenson, agitation is "subversive propaganda by action such as mass demonstrations or the political strike, that is, a strike not intended to benefit the union or workers in the ordinary sense, but intended instead against the government." Furthermore, propaganda and agitation, even when they are legal forms of freedom of speech, press, and assembly can still be classified as subversive activity. These tools further demonstrate the need to determine intent of those taking action to identify subversive activities.

Civil unrest creates many of the problems that an insurgency campaign does. First of all it is an affront to government authority, and if the government is unable to quell the unrest it leads to an erosion of state power. This loss of power stems from the people's lack of trust in the government to maintain law and order. In turn, the people begin to question whether or not new leadership is needed. Discrediting, disarming, and demoralizing the government is the goal of these activities and the cause of the government's loss of power. Civil unrest depletes resources as the government is forced to spend more money on additional police. Additionally, civil unrest may be used to provoke a response from the government. In the 1940s, during strikes against the Marshall Plan, communists in France would "deliberately provoke the police and gendarmerie into acts of repressive violence in order to exploit the resulting 'martyrs to the cause' for propaganda purposes." These martyrs and subsequent propaganda can be useful in turning political and social groups against each other. The less violent forms of unrest, "such as worker absenteeism, passive resistance, boycotts, and deliberate attempts to cripple government agencies by 'overloading the system' with false reports, can have powerfully disruptive effects, both economically and politically."

In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (for example, a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compensation) or criminal law (for example, a fraud perpetrator may be prosecuted and imprisoned by governmental authorities), or it may cause no loss of money, property, or legal right but still be an element of another civil or criminal wrong. The purpose of fraud may be monetary gain or other benefits, for example by obtaining a passport, travel document, or driver's license, or mortgage fraud, where the perpetrator may attempt to qualify for a mortgage by way of false statements.

Internal fraud, also known as "insider fraud", is fraud committed or attempted by someone within an organization such as an employee.

A hoax is a distinct concept that involves deliberate deception without the intention of gain or of materially damaging or depriving a victim.

As a civil wrong.

In common law jurisdictions, as a civil wrong, fraud is a tort. While the precise definitions and requirements of proof vary among jurisdictions, the requisite elements of fraud as a tort generally are the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, and in fact does rely, to the harm of the victim. Proving fraud in a court of law is often said to be difficult as the intention to defraud is the key element in question. As such, proving fraud comes with a "greater evidentiary burden than other civil claims". This difficulty is exacerbated by the fact that some jurisdictions require the victim to prove fraud by clear and convincing evidence.

The remedies for fraud may include rescission (for example, reversal) of a fraudulently obtained agreement or transaction, the recovery of a monetary award to compensate for the harm caused, punitive damages to punish or deter the misconduct, and possibly others.

In cases of a fraudulently induced contract, fraud may serve as a defense in a civil action for breach of contract or specific performance of contract. Similarly, fraud may serve as a basis for a court to invoke its equitable jurisdiction.

As a criminal offense.

In common law jurisdictions, as a criminal offense, fraud takes many different forms, some general (for example, theft by false pretense) and some specific to particular categories of victims or misconduct (for example, bank fraud, insurance fraud, forgery). The elements of fraud as a crime similarly vary. The requisite elements of perhaps the most general form of criminal fraud, theft by false pretense, are the intentional deception of a victim by false representation or pretense with the intent of persuading the victim to part with property and with the victim parting with property in reliance on the representation or pretense and with the perpetrator intending to keep the property from the victim.

The type, functions, and characteristics of marriage vary from culture to culture, and can change over time. In general there are two types: civil marriage and religious marriage, and typically marriages employ a combination of both (religious marriages must often be licensed and recognized by the state, and conversely civil marriages, while not sanctioned under religious law, are nevertheless respected). Marriages between people of differing religions are called interfaith marriages, while marital conversion, a more controversial concept than interfaith marriage, refers to the religious conversion of one partner to the other's religion for the sake of satisfying a religious requirement.

Americas and Europeb.

In the Americas and Europe, in the 21st century, legally recognized marriages are formally presumed to be monogamous (although some pockets of society accept polygamy socially, if not legally, and some couples choose to enter into open marriages). In these countries, divorce is relatively simple and socially accepted. In the West, the prevailing view toward marriage today is that it is based on a legal covenant recognizing emotional attachment between the partners and entered into voluntarily.

In the West, marriage has evolved from a life-time covenant that can only be broken by fault or death to a contract that can be broken by either party at will. Other shifts in Western marriage since World War I include:

There emerged a preference for maternal custody of children after divorce, as custody was more often settled based on the best interests of the child, rather than strictly awarding custody to the parent of greater financial means.

Both spouses have a formal duty of spousal support in the event of divorce (no longer just the husband).

Out of wedlock children have the same rights of support as legitimate children.

In most countries, rape within marriage is illegal and can be punished.

Spouses may no longer physically abuse their partners and women retain their legal rights upon marriage.

In some jurisdictions, property acquired since marriage is not owned by the title-holder. This property is considered marital and to be divided among the spouses by community property law or equitable distribution via the courts.

Marriages are more likely to be a product of mutual love, rather than economic necessity or a formal arrangement among families.

Remaining single by choice is increasingly viewed as socially acceptable and there is less pressure on young couples to marry. Marriage is no longer obligatory.

Interracial marriage is no longer forbidden. Same-race marriage was uniquely illegal in Paraguay in its early history. Same-sex marriage and civil unions are legal in some countries.

Asia and Africa.

Key facts concerning the marriage law in Africa and Asia:

Marital rape is legal in most parts Africa and Asia alike.

Child marriage is legal in most parts of Africa and very few parts of Asia alike.

Arranged marriage is prevalent in many parts of Africa and Asia alike, especially in rural regions.

Same-sex marriage is illegal in most parts of Africa and Asia alike, with the exception of South Africa, Taiwan and some dependent territories.

Polygamy is legal in many parts of Africa and Asia, but tends to be illegal in most Communist countries and legal in most Muslim countries.

Divorce is legal in all parts of Africa and Asia (except in the Philippines), but wives seeking divorce have fewer legal rights than husbands in Muslim countries than in Communist countries.

Dowries are a traditional aspect of marriage customs in most rural regions of Africa and Asia alike.

Some societies permit polygamy, in which a man could have multiple wives; even in such societies however, most men have only one. In such societies, having multiple wives is generally considered a sign of wealth and power. The status of multiple wives has varied from one society to another.

The extent to which a trademark owner may prevent unauthorized use of trademarks that are the same as or similar to its trademark depends on various factors such as whether its trademark is registered, the similarity of the trademarks involved, the similarity of the products or services involved, and whether the owner's trademark is well known or, under U.S. law relating to trademark dilution, famous.

If a trademark has not been registered, some jurisdictions (especially Common Law countries) offer protection for the business reputation or goodwill which attaches to unregistered trademarks through the tort of passing off. Passing off may provide a remedy in a scenario where a business has been trading under an unregistered trademark for many years, and a rival business starts using the same or a similar mark.

If a trademark has been registered, then it is much easier for the trademark owner to demonstrate its trademark rights and to enforce these rights through an infringement action. Unauthorized use of a registered trademark need not be intentional for infringement to occur, although damages in an infringement lawsuit will generally be greater if there was an intention to deceive.

For trademarks that are considered to be well known, infringing use may occur where the use occurs about products or services which are not the same as or similar to the products or services about which the owner's mark is registered. A growing area of law relating to the enforcement of trademark rights is secondary liability, which allows for the imputation of liability to one who has not acted directly to infringe a trademark but whose legal responsibility may arise under the doctrines of either contributory or vicarious liability.

Limits and defenses to claims of infringement.

Trademarks are subject to various defenses, such as abandonment, limitations on geographic scope, and fair use. In the United States, the fair use defense protects many of the interests in free expression related to those protected by the First Amendment.

Fair use may be asserted on two grounds, either that the alleged infringer is using the mark to describe accurately an aspect of its products, or that the alleged infringer is using the mark to identify the mark owner. One of the most visible proofs that trademarks provide a limited right in the U.S. comes from the comparative advertising that is seen throughout U.S. media.

An example of the first type is that although Maytag owns the trademark "Whisper Quiet" for its dishwashers, makers of other products may describe their goods as being "whisper quiet" so long as these products do not fall under the same category of goods the trademark is protected under.

An example of the second type is that Audi can run advertisements saying that a trade publication has rated an Audi model higher than a BMW model since they are only using "BMW" to identify the competitor. In a related sense, an auto mechanic can truthfully advertise that he services Volkswagens, and a former Playboy Playmate of the Year can identify herself as such on her website.

Wrongful or groundless threats of infringement.

Various jurisdictions have laws that are designed to prevent trademark owners from making wrongful threats of a trademark infringement action against other parties. These laws are intended to prevent large or powerful companies from intimidating or harassing smaller companies.

Where one party makes a threat to sue another for trademark infringement, but does not have a genuine basis or intention to carry out that threat, or does not carry out the threat at all within a certain period, the threat may itself become a basis for legal action. In this situation, the party receiving such a threat may seek from the Court a declaratory judgment; also known as a declaratory ruling.

Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will receive all or some of the punitive damages in award.

Punitive damages are often awarded if compensatory damages are deemed an inadequate remedy. The court may impose them to prevent undercompensation of plaintiffs and to allow redress for undetectable torts and taking some strain away from the criminal justice system. Punitive damages are most important for violations of the law that are hard to detect.

However, punitive damages awarded under court systems that recognize them may be difficult to enforce in jurisdictions that do not recognize them. For example, punitive damages awarded to one party in a US case would be difficult to get recognition for in a European court in which punitive damages are most likely to be considered to violate ordre public.

Because they are usually paid in excess of the plaintiff's provable injuries, punitive damages are awarded only in special cases, usually under tort law, if the defendant's conduct was egregiously insidious. Punitive damages cannot generally be awarded in contract disputes. The main exception is in insurance bad faith cases in the US if the insurer's breach of contract is alleged to be so egregious as to amount to a breach of the "implied covenant of good faith and fair dealing", and is therefore considered to be a tort cause of action eligible for punitive damages (in excess of the value of the insurance policy).

Subversion (from Latin subvertere 'overthrow') refers to a process by which the values and principles of a system in place are contradicted or reversed in an attempt to transform the established social order and its structures of power, authority, hierarchy, and social norms. Subversion can be described as an attack on the public morale and, "the will to resist intervention are the products of combined political and social or class loyalties which are usually attached to national symbols. Following penetration, and parallel with the forced disintegration of political and social institutions of the state, these tendencies may be detached and transferred to the political or ideological cause of the aggressor". Subversion is used as a tool to achieve political goals because it generally carries less risk, cost, and difficulty as opposed to open belligerency. Furthermore, it is a relatively cheap form of warfare that does not require large amounts of training. A subversive is something or someone carrying the potential for some degree of subversion. In this context, a "subversive" is sometimes called a "traitor" with respect to (and usually by) the government in power.

Subversion, however, is also often a goal of comedians, artists and people in those careers. In this case, being subversive can mean questioning, poking fun at, and undermining the established order in general.

Terrorist groups generally do not employ subversion as a tool to achieve their goals. Subversion is a manpower-intensive strategy and many groups lack the manpower and political and social connections to carry out subversive activities. However, actions taken by terrorists may have a subversive effect on society. Subversion can imply the use of insidious, dishonest, monetary, or violent methods to bring about such change. This is in contrast to protest, a coup d'état, or working through traditional means in a political system to bring about change. Furthermore, external subversion is where, "the aggressor state attempts to recruit and assist indigenous political and military actors to overthrow their government by coup d’état". If subversion fails in its goal of bringing about a coup it is possible that the actors and actions of the subversive group could transition to insurrection, insurgency, and or guerilla warfare.

The word is present in all languages of Latin origin, originally applying to such events as the military defeat of a city. As early as the 14th century, it was being used in the English language with reference to laws, and in the 15th century came to be used with respect to the realm. The term has taken over from 'sedition' as the name for illicit rebellion, though the connotations of the two words are rather different; sedition suggesting overt attacks on institutions, subversion something much more surreptitious, such as eroding the basis of belief in the status quo or setting people against each other.

Legal malpractice in estate planning.

Lawsuits against estate planning attorneys have increased in recent years. Legal malpractice in trusts and estates is now considered to have the highest risk of exposure, representing 12% of all legal malpractice claims. Due to changes in privity laws, many states allow third-party beneficiaries to bring a lawsuit against an attorney who executed a will that is later deemed to be a product of undue influence. Experienced estate attorneys tend to be vigilant of "red flags" indicative of undue influence during the drafting and execution of a will. Because a will is the most important document most individuals sign in their lives, and it affects property rights for all time, the process should be taken seriously. Many attorneys incorrectly assume that estate planning is a simple area of law. Some less-informed attorneys believe estate planning to be a simple, fast, and easy way to make a quick buck, this could not be farther from the truth. An attorney involved in estate planning should exercise diligence and thoroughly document their work in the event they find themselves exposed to a malpractice suit. Ignoring indications of UI by the estate planning attorney can put them in a precarious position of needing to explain why they redirected a testator's estate while their client was unduly influenced.

Presumption.

Because of the secrecy and tactics leveraged by an influencer, direct evidence of wrongdoing is often impossible for the contestant of a will to produce. Access to the individual is typically controlled by the influencer so that friends and family are unable to observe the perpetrator engaging in manipulation, thus a challenger is often unable to provide direct evidence. In an effort to address this substantial power distinction, many states allow for the burden of proof to be shifted to the alleged influencer if certain requirements are satisfied. Jurisdictions vary as to the requirements, but in general, the burden is shifted when the combination of a confidential or fiduciary relationship with the donor and suspicious circumstances are found. Such circumstances include:

Old age and weakened physical or mental condition of the testator.

Lack of consideration of the bequest.

Unnatural or unjust disposition of the property.

Participation of the beneficiary in procuring the gift.

Domination or control over the donor by the beneficiary.

Secrecy, concealment, or failure to disclose the gift.

Once shifted, the proponent of the contested will is tasked with rebutting the presumption. The alleged influencer is required to prove that the testator made the will of their own volition, and was not under any influence at the time it was executed.

History.

Undue influence originated from English common-law in a doctrine from 1617. Chancellor Bacon found that a woman who "worked on the simplicity and weakness" of an elderly man was guilty of undue influence.

Criticisms.

There are several criticisms of class actions. The preamble to the Class Action Fairness Act stated that some abusive class actions harmed class members with legitimate claims and defendants that have acted responsibly, adversely affected interstate commerce, and undermined public respect for the country's judicial system.

Class members often receive little or no benefit from class actions. Examples cited for this include large fees for the attorneys, while leaving class members with coupons or other awards of little or no value; unjustified awards are made to certain plaintiffs at the expense of other class members; and confusing notices are published that prevent class members from being able to fully understand and effectively exercise their rights.

For example, in the United States, class lawsuits sometimes bind all class members with a low settlement. These "coupon settlements" (which usually allow the plaintiffs to receive a small benefit such as a small check or a coupon for future services or products with the defendant company) are a way for a defendant to forestall major liability by precluding many people from litigating their claims separately, to recover reasonable compensation for the damages. However, existing law requires judicial approval of all class-action settlements, and in most cases, class members are given a chance to opt out of class settlement, though class members, despite opt-out notices, may be unaware of their right to opt-out because they did not receive the notice, did not read it or did not understand it.

The Class Action Fairness Act of 2005 addresses these concerns. An independent expert may scrutinize coupon settlements before judicial approval in order to ensure that the settlement will be of value to the class members. Further, if the action provides for settlement in coupons, "the portion of any attorney's fee awarded to class counsel that is attributable to the award of the coupons shall be based on the value to class members of the coupons that are redeemed".

Ethics.

Class action cases present significant ethical challenges. Defendants can hold reverse auctions and any of several parties can engage in collusive settlement discussions. Subclasses may have interests that diverge greatly from the class but may be treated the same. Proposed settlements could offer some groups (such as former customers) much greater benefits than others. In one paper presented at an ABA conference on class actions in 2007, authors commented that "competing cases can also provide opportunities for collusive settlement discussions and reverse auctions by defendants anxious to resolve their new exposure at the most economic cost".

Terminology.

Terms such as "mark", "brand" and "logo" are sometimes used interchangeably with "trademark". "Trademark", however, also includes any device, brand, label, name, signature, word, letter, numerical, shape of goods, packaging, color or combination of colors, smell, sound, movement or any combination thereof which is capable of distinguishing goods and services of one business from those of others. It must be capable of graphical representation and must be applied to goods or services for which it is registered.

Specialized types of trademark include certification marks, collective trademarks and defensive trademarks. A trademark that is popularly used to describe a product or service (rather than to distinguish the product or services from those of third parties) is sometimes known as a genericized trademark. If such a mark becomes synonymous with that product or service to the extent that the trademark owner can no longer enforce its proprietary rights, the mark becomes generic.

A "trademark look" is an informal term for a characteristic look for a performer or character of some sort. It is usually not legally trademark protected and the term is not used in the trademark law.

Registration.

Some law considers a trademark to be a form of property. Proprietary rights about a trademark may be established through actual use of that trademark in the marketplace or through registration of the mark with the relevant trademarks office (or "trademarks registry") of a particular jurisdiction. In some jurisdictions, trademark rights can be established through either or both means. Certain jurisdictions generally do not recognize trademarks rights arising merely through use. If trademark owners do not hold registrations for their marks in such jurisdictions, the extent to which they will be able to enforce their rights through trademark infringement proceedings may be limited. In cases of dispute, this disparity of rights is often referred to as "first to file" (for example, register) as opposed to "first to use." Some countries, such as Germany, offer a limited number of common law rights for unregistered marks, where to gain protection the goods or services must first occupy a highly significant position in the marketplace — where this could be 40% or more market share for sales in the particular class of goods or services.

In the United States, the registration process includes several steps. First, the trademark owner applies with the United States Patent and TradeMark Office to register the trademark. About three months after it is filed, the application is reviewed by an examining attorney at the U.S. Patent and Trademark Office. The examining attorney checks for compliance with the rules of the Trademark Manual of Examination Procedure. This review includes procedural matters such as making sure the applicant's goods or services are identified properly. It also includes more substantive matters such as making sure the applicant's mark is not merely descriptive or likely to be confused with a pre-existing applied-for or registered mark. If the application runs afoul of any requirement, the examining attorney will issue an office action requiring the applicant to address certain issues or refusals before registration of the mark. If the examining attorney approves the application, it will be "published for opposition." During this 30-day period, third parties who may be affected by the registration of the trademark may step forward to file an opposition proceeding to stop the registration of the mark. If an opposition proceeding is filed it institutes a case before the Trademark Trial and Appeal Board to determine both the validity of the grounds for the opposition as well as the ability of the applicant to register the mark at issue.

Constructive trust.

Constructive trust is enforced in situations where the possession of a property by the defendant unjustly enriches him or her, and therefore the court decides to grant the ownership of the property to the plaintiff.

Equitable lien.

Equitable lien is applicable when the defendant used unjust funds obtained from the plaintiff to make improvements to his or her property. By granting the plaintiff a security interest in the property of the defendant, it guards the right of the plaintiff to have the funds returned from the defendant.

Subrogation.

In a subrogation case, the property that belongs to the plaintiff from a legal standpoint is used by the defendant to repay the debt to a third party. Subrogation entitles the plaintiff to the rights as the third party against the defendant.

Specific performance.

Specific performance refers to the court compelling the defendant to perform certain actions. This type of equitable remedy is limited in scope because in contract laws for example, issuing specific performance would require the property that gives rise to the lawsuit to be unique, or that it is more practical for the defendant to compensate the plaintiff by paying for compensatory damages.

Reformation.

Reformation, or referred to as rectification, is when the court practices remedies by correcting the writings of a contract. Under two circumstances, reformation applies either when (1) the writing does not reflect the agreement made between the parties, or (2) one party signed the contract in the first place because of manipulation by fraud planned and executed by the other party.

Equitable rescission.

Equitable rescission gives the innocent plaintiff the right to undo or rescind a contract when the plaintiff entered the contract as a result of fraud, misrepresentation, etc., or when the contract has been breached by the other party. To restore the situation to what it was before the contract, both parties need to return what they have received from the exchange.

Declaratory remedies.

Declaratory remedies, or declaratory judgment, do not belong to the category of damages or equities. They are legal determinations made by the court to address ambiguity or disputes without sanctioning an action or practice against the parties involved. Declaratory remedies serve to affirm the validity of the claims and requests made by the plaintiff, accompanied by injunction in selective cases at the discretion of judges or juries. Declaratory remedies are a component of preventive adjudication because in cases that demand only declaration, no actual harm or loss has been incurred by the plaintiff.

Sedition is overt conduct, such as speech and organization, that tends toward rebellion against the established order. Sedition often includes subversion of a constitution and incitement of discontent toward, or insurrection against, established authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. Seditious words in writing are seditious libel. A seditionist is one who engages in or promotes the interest of sedition.

Because sedition is overt, it is typically not considered a subversive act, and the overt acts that may be prosecutable under sedition laws vary from one legal code to another.

Roman origin.

Seditio (lit. 'going apart') was the offense, in the later Roman Republic, of collective disobedience to a magistrate, including both military mutiny and civilian mob action. Leading or instigating seditio was punishable by death. Civil seditio became frequent during the political crisis of the first century BCE, as populist politicians sought to check the privileged classes by appealing to public assemblies. The Julio-Claudian emperors addressed this situation by abolishing elections and other duties of the assemblies. Under Tiberius the crime of seditio was subsumed in the law of majestas, which prohibited any utterance against the dignity of the emperor.

Seditio has often been proposed as the offense for which Jesus was crucified, as described in Luke 23:14: "inciting the people to rebellion" (Greek: ἀποστρέφοντα τὸν λαόν, "leading the people astray").

History in common law jurisdictions.

The term sedition in its modern meaning first appeared in the Elizabethan Era (1590) as the "notion of inciting by words or writings disaffection towards the state or constituted authority". The law developed in the Court of Star Chamber, relying on longstanding scandalum magnatum statutes and a broad repressive act of Mary the 1st against literature that contained "the encouraging, stirring or moving of any insurrection". That seditious statements were true was no defense, but rather an aggravating factor, since true statements were all the more potent. After the Star Chamber's dissolution, enforcement continued in the courts of assize and quarter sessions.

Three classes of seditious offense were commonly charged: "seditious words" manifested by speaking, "seditious libel" by writing or publishing, and "seditious conspiracy" by active plotting. Although England adopted the name of the offense from Roman-derived civil law, it did not rely on the jurisprudence.

Undue influence (UI) is a psychological process by which a person's free will and judgment is supplanted by that of another. It is a legal term and the strict definition varies by jurisdiction. Generally speaking, it is a means by which a person gains control over their victims' decision making through manipulation tactics and unfair pressure, typically for financial gain. Historically, UI has been poorly understood, even in some legal circles.

Undue influence is typically perpetrated by a person who is trusted by the victim and is dependent on them for emotional and physical needs. Caregivers are often found to have unduly influenced their patients, however, anyone in a position of trust and authority over the victim (for example, fiduciary) may be guilty. This includes the victims' attorney, accountant, nursing home attendant, or even children. UI is a process, not a single event. A manipulator may spend weeks, months, or even years before successfully unduly-influencing their victim. Anyone is susceptible to UI, but the elderly are particularly vulnerable. Perpetrators of UI operate in shadow, enacting their manipulation behind closed doors where there are no witnesses. A person being unduly influenced may become withdrawn, depressive and passive. Physical signs of abuse may include unexplained bruising, scratches, and or broken bones. Other signs may include missing or broken dentures, prescription eyeglasses, hearing aids or other assistive devices.

A distinction is made between the nature of capacity and undue influence. In assessing capacity, the practitioner evaluates an individual's ability to competently perform tasks (for example, execute a will or give medical consent). These assessments give insight to the functioning of the cognitive capabilities at that moment in time. Conversely, screening for undue influence is focused on the process of events which occur over an extended period. To determine whether another person is leveraging unfair tactics on the victim, an assessment specific to undue influence is required.

Undue influence occurs in various circumstances including, but not limited to domestic violence, hostage situations, cults, prisoners of war, and dictatorships. The common theme among these situations is the aspect of psychological manipulation. Traumatic bonding may occur between the victim and influencer, as a result, the victim may even defend the perpetrator. The effectiveness of cult tactics (for example, Love bombing) on young and healthy individuals illustrates that anyone, regardless of mental status, is a potential victim of UI under certain circumstances.

Elderly Americans are living longer, and with this increased life expectancy, the prevalence of cognitive disorders associated with advanced age has also increased. A significant concentration of wealth is controlled by this aging demographic making them a potential target for exploitation. Modern families are becoming more complex and dispersed. Given these factors, the number of will contests involving undue influence is expected to increase.

A class action, also known as a class-action lawsuit, class suit, or representative action, is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group. The class action originated in the United States and is still predominantly an American phenomenon, but Canada, as well as several European countries with civil law, have made changes in recent years to allow consumer organizations to bring claims on behalf of consumers.

Description.

In a typical class action, a plaintiff sues a defendant or a number of defendants on behalf of a group, or class, of absent parties. This differs from a traditional lawsuit, where one party sues another party, and all of the parties are present in court. Although standards differ between states and countries, class actions are most common where the allegations usually involve at least 40 people who the same defendant has injured in the same way. Instead of each damaged person bringing one's own lawsuit, the class action allows all the claims of all class members—whether they know they have been damaged or not—to be resolved in a single proceeding through the efforts of the representative plaintiff(s) and appointed class counsel.

History.

England and the United Kingdom.

The antecedent of the class action was what modern observers call "group litigation," which appears to have been quite common in medieval England from about 1200 onward.  These lawsuits involved groups of people either suing or being sued in actions at common law. These groups were usually based on existing societal structures like villages, towns, parishes, and guilds. Unlike modern courts, the medieval English courts did not question the right of the actual plaintiffs to sue on behalf of a group or a few representatives to defend an entire group.

From 1400 to 1700, group litigation gradually switched from being the norm in England to the exception.  The development of the concept of the corporation led to the wealthy supporters of the corporate form becoming suspicious of all unincorporated legal entities, which in turn led to the modern concept of the unincorporated or voluntary association.  The tumultuous history of the Wars of the Roses and then the Star Chamber resulted in periods during which the common law courts were frequently paralyzed, and out of the confusion the Court of Chancery emerged with exclusive jurisdiction over group litigation.

By 1850, Parliament had enacted several statutes on a case-by-case basis to deal with issues regularly faced by certain types of organizations, like joint-stock companies, and with the impetus for most types of group litigation removed, it went into a steep decline in English jurisprudence from which it never recovered.  It was further weakened by the fact that equity pleading, in general, was falling into disfavor, which culminated in the Judicature Acts of 1874 and 1875.  Group litigation was essentially dead in the United Kingdom after 1850.

A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from others. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. Trademarks used to identify services are sometimes called service marks.

In the past, The first legislative act concerning trademarks was passed in 1266 under the reign of Henry the 3rd of England requiring all bakers to use a distinctive mark for the bread they sold. The first modern trademark laws emerged in the late 19th century. In France, the first comprehensive trademark system in the world was passed into law in 1857. The Trade Marks Act 1938 of the United Kingdom changed the system, permitting registration based on "intent-to-use", creating an examination based process, and creating an application publication system. The 1938 Act, which served as a model for similar legislation elsewhere, contained other novel concepts such as "associated trademarks", a consent to use the system, a defensive mark system, and a non claiming right system.

The symbols symbol) and the registered trademark symbol can be used to indicate trademarks; the latter is only for use by the owner of a trademark that has been registered.

Usage.

A trademark identifies the brand owner of a particular product, media, company, Movie or TV series, characters or service. Trademarks can be used by others under licensing agreements; for example, Bullyland obtained a license to produce Smurf figurines; the Lego Group purchased a license from Lucasfilm to be allowed to launch Lego Star Wars; and TT Toys Toys is a manufacturer of licensed ride-on replica cars for children. The unauthorized usage of trademarks by producing and trading counterfeit consumer goods is known as brand piracy.

The owner of a trademark may pursue legal action against trademark infringement. Most countries require formal trademark registration as a precondition for pursuing this type of action. The United States, Canada, and other countries also recognize common law trademark rights, which means action can be taken to protect any unregistered trademark if it is in use. Still, common law trademarks offer to the holder, in general, less legal protection than registered trademarks.

As the purpose of the trademark is to identify a particular source of the product, rather than the product itself, it is widespread legal advice that trademark owners should always use their trademarks as adjectives modifying a generic product name, and set off with capitalization or a distinctive typeface, as a guard against the trademark becoming the generic name of the product. Thus "LEGO bricks" rather than "some Lego" or "Legos". The name of the producer itself is a "trade name" rather than a trademark and can be used as a noun.

A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will in order to compensate for the harm of a wrongful act inflicted upon an individual.

In common law jurisdictions and mixed civil-common law jurisdictions, the law of remedies distinguishes between a legal remedy (for example a specific amount of monetary damages) and an equitable remedy (for example injunctive relief or specific performance). Another type of remedy available in these systems is declaratory relief, where a court determines the rights of the parties to action without awarding damages or ordering equitable relief. The type of legal remedies to be applied in specific cases depend on the nature of the wrongful act and its liability. In international human rights law, there is a right to an effective remedy.

In the legal system of the United States, there exists a traditional form of judicial remedies that serve to combat juror biases caused by news coverage. The First Amendment of the United States forbids the government from censoring and restraining the freedom of expression, which allows the ever-expanding news media to influence the legal process. The entangled relationship between mass media and the legal system presents challenges to the Sixth Amendment that guarantees the rights of criminal defendants to receive fair trials. Trial-level remedies are in place to avoid pretrial publicity from affecting the fairness of a trial. To minimize the impacts of pretrial publicity, there are six kinds of judicial remedies at the disposal of judges: voir dire, change of venue, change of veniremen, continuance, admonition, sequestration.

In English and American jurisprudence, there is a legal maxim (albeit one sometimes honored in the breach) that for every right, there is a remedy; where there is no remedy, there is no right. That is, lawmakers claim to provide appropriate remedies to protect rights. This legal maxim was first enunciated by William Blackstone: "It is a settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury its proper redress." In addition to the United Kingdom and the United States, legal remedy is a concept widely practiced in the legal system of a variety of countries, though approached differently.

Explanations for the 20th century increase in secessionism.

According to University of California, Santa Barbara, political scientist Bridget L Coggins, there are four potential explanations in the academic literature for the drastic increase in state birth during the 20th century:

Ethnonational mobilization – Ethnic minorities have been increasingly mobilized to pursue states of their own.

Institutional empowerment – The growing inability of empires and ethnic federations to maintain colonies and member states.

Relative strength – Increasingly powerful secessionist movements are more likely to achieve statehood.

Negotiated consent – Home states and the international community increasingly consent to secessionist demands.

Other scholars have linked secession to resource discoveries and extraction. David B. Carter, H. E. Goemans and Ryan Griffiths find that border changes among states tend to conform to borders for previous administrative units.

Several scholars have argued that changes in the international system have made it easier to survive and prosper as a small state. Tanisha Fazal and Ryan Griffiths link increased numbers of secessions to an international system that is more favorable for new states. For example, new states can obtain assistance from international organizations, such as the International Monetary Fund, World Bank and the United Nations. Alberto Alesina and Enrico Spolaore argue that greater levels of free trade and peace have reduced the benefits of being part of a larger state, thus motivating nations within larger states to seek secession.

Woodrow Wilson's proclamations on self-determination in 1918 created a surge in secessionist demands.

Rights to secession.

Most sovereign states do not recognize the right to self-determination through secession in their constitutions. Many expressly forbid it. However, there are several existing models of self-determination through greater autonomy and through secession.

In liberal constitutional democracies the principle of majority rule has dictated whether a minority can secede. In the United States Abraham Lincoln acknowledged that secession might be possible through amending the United States Constitution. The Supreme Court in Texas v White held secession could occur "through revolution, or through consent of the States". The British Parliament in 1933 held that Western Australia could secede from the Commonwealth of Australia only upon vote of a majority of the country as a whole; the previous two-thirds majority vote for secession via referendum in Western Australia was insufficient.

The Chinese Communist Party followed the Soviet Union in including the right of secession in its 1931 constitution in order to entice ethnic nationalities and Tibet into joining. However, the Party eliminated the right to secession in later years, and had anti-secession clause written into the Constitution before and after the founding of the People's Republic of China. The 1947 Constitution of the Union of Burma contained an express state right to secede from the union under a number of procedural conditions. It was eliminated in the 1974 constitution of the Socialist Republic of the Union of Burma (officially the "Union of Myanmar"). Burma still allows "local autonomy under central leadership".

As of 1996, the constitutions of Austria, Ethiopia, France, and Saint Kitts and Nevis have express or implied rights to secession. Switzerland allows for the secession from current and the creation of new cantons. In the case of proposed Quebec separation from Canada, the Supreme Court of Canada in 1998 ruled that only both a clear majority of the province and a constitutional amendment confirmed by all participants in the Canadian federation could allow secession.

In the common law tradition, testamentary capacity is the legal term of art used to describe a person's legal and mental ability to make or alter a valid will. This concept has also been called sound mind and memory or disposing mind and memory.

Presumption of capacity.

Adults are presumed to have the ability to make a will. Litigation about testamentary capacity typically revolves around charges that the testator, by virtue of senility, dementia, insanity, or other unsoundness of mind, lacked the mental capacity to make a will. In essence, the doctrine requires those who would challenge a validly executed will to demonstrate that the testator did not know the consequence of their conduct when they executed the will.

Certain people, such as minors, are usually deemed to be conclusively incapable of making a will by the common law; however, minors who serve in the military are conceded the right to make a will by statute in many jurisdictions. In South Africa, however, one acquires testamentary capacity at the age of 16 years.

Requirements.

The requirements for testamentary capacity are minimal. Some courts have held that a person who lacks the capacity to make a contract can nevertheless make a valid will. While the wording of statutes or judicial rulings will vary from one jurisdiction to another, the test generally requires that the testator was aware of:

The extent and value of their property.

The persons who are the natural beneficiaries

The disposition they are making

How these elements relate to form an orderly plan of distribution of property.

The legal test implies that a typical claimant in a will contest is a disgruntled heir who believes they should have received a larger share than they did under the will. Once the challenging party meets the burden of proof that the testator did not possess the capacity, the burden subsequently shifts to the party propounding the will to show by clear and convincing evidence that the testator did have the requisite capacity.

Proof of testamentary capacity.

Those who contest a will for lack of testamentary capacity must typically show that the decedent suffered from mental unsoundness that left them unable to remember family members or caused them to hold insane delusions about them. Dead Man's Statutes sometimes restrict evidence which can be admitted concerning transactions with the decedent.

Lawyers for people whose testamentary capacity might be called into question often arrange for a will execution to be videotaped. On video, they ask the testator about his property and about his family, and go over the contents of the testator's will.

The testamentary capacity matter is most frequently raised posthumously, when an aggrieved heir contests the will entered into probate. For this reason, in the absence of the ability to interview the testator directly, a forensic psychiatrist or forensic psychologist may evaluate a testator’s capacity by reviewing videotape of the drafting of the will, emails or letters, medical records, and other records. Along with resolving an examinee's testamentary capacity, a forensic specialist may observe for signs of undue influence, particularly susceptibility to undue influence.

Even when a testator is found to have lacked testamentary capacity due to senility, loss of memory due to the aging process, infirmity or insanity, courts will sometimes rule that the testator had a "temporary period of lucidity" or a "lucid moment" at the time of the execution of the testamentary instrument. Such finding will validate a will that would otherwise be denied probate.

A way to forestall a will contest would be to have a self-proving will, in which an affidavit of the witnesses to the will specifically swear or affirm that the will was prepared under the supervision of an attorney.

A private attorney general is an informal term originating in common law jurisdictions for a private attorney who brings a lawsuit claiming it to be in the public interest, for example, benefiting the general public and not just the plaintiff, on behalf of a citizen or group of citizens. The attorney may, at the equitable discretion of the court, be entitled to recover attorney's fees if they prevail. The rationale behind this principle is to provide extra incentive to private attorneys to pursue suits that may be of benefit to society at large. Private attorney general suits are commonly, though not always, brought as class actions in jurisdictions that permit the certification of class action lawsuits.

Origin.

Historically in English common law, a writ of qui tam was a writ through which private individuals who assist a prosecution can receive for themselves all or part of the damages or financial penalties recovered by the government as a result of the prosecution. Its name is an abbreviation of the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning " who sues in this matter for the king as well as for himself." While the writ fell into disuse in England and Wales following the Common Informers Act 1951, it remains current in the United States under the False Claims Act, 31 U.S.C. § 3729, which allows a private individual, or "whistleblower" (or relator), with knowledge of past or present fraud committed against the federal government to bring suit on its behalf. This allowance and, in some cases, reliance on private individual litigation to enforce the law has also been referred to as a "bounty" system due to the private citizen's potential financial gain if the suit is successful. There are also qui tam provisions in 18 U.S.C. § 962 regarding arming vessels against friendly nations; 25 U.S.C. § 201 regarding violating Indian protection laws; 46 U.S.C. § 80103 regarding the removal of undersea treasure from the Florida coast to foreign nations; and 35 U.S.C. § 292 regarding false marking. However, in February 2011, the qui tam provision regarding false marking was held to be unconstitutional by a U.S. District Court, and, in September of that year, the enactment of the Leahy–Smith America Invents Act effectively removed qui tam remedies from § 292. Contemporary private attorney general lawsuits are an outgrowth of the rationale underlying the writ of qui tam that enabling private citizens to enforce the law will strengthen enforcement and contribute to the rule of law.

Within the U.S., trade secrets generally encompass a company's proprietary information that is not generally known to its competitors, and which provides the company with a competitive advantage.

Although trade secrets law evolved under state common law, prior to 1974, the question of whether patent law preempted state trade secrets law had been unanswered. In 1974, the United States Supreme Court issued the landmark decision, Kewanee Oil Company v Bicron Corporation, which resolved the question in favor of allowing the states to freely develop their own trade secret laws.

State law.

In 1979, several U.S. states adopted the Uniform Trade Secrets Act (UTSA), which was further amended in 1985, with approximately 47 states having adopted some variation of it as the basis for trade secret law. Another significant development is the Economic Espionage Act (EEA) of 1996 (18 U.S.C. §§ 1831–1839), which makes the theft or misappropriation of a trade secret a federal crime.

This law contains two provisions criminalizing two sorts of activity.

18 U.S.C. § 1831(a), criminalizes the theft of trade secrets to benefit foreign powers.

18 U.S.C. § 1832, criminalizes their theft for commercial or economic purposes.

The statutory penalties are different for the two offenses. The EEA was extended in 2016 to allow companies to file civil suits in federal court.

Federal law.

On May 11, 2016, President Obama signed the Defend Trade Secrets Act (DTSA), 18 U.S.C. §§ 1839, which for the first time created a federal cause of action for misappropriation of trade secrets. The DTSA provides for both a private right of action for damages and injunction and a civil action for injunction brought by the Attorney General.

The statute followed state laws on liability in significant part, defining trade secrets in the same way as the Uniform Trade Secrets Act as,

"all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information."

However, the law contains several important differences from prior law.

Because it is a federal law, trade secret cases can be prosecuted in federal courts with concomitant procedural advantages.

It provides for the unusual remedy of preliminary seizure of "property necessary to prevent the propagation or dissemination of the trade secret," 18 U.S.C. §1836.

It provides for remedies to include royalties in appropriate cases and exemplary damages up to two times the actual damages in cases of "willful and malicious" appropriation, 18 U.S.C. §1836(b)(3).

The DTSA also clarifies that a United States resident (including a company) can be liable for misappropriation that takes place outside the United States, and any person can be liable as long as an act in furtherance of the misappropriation takes place in the United States, 18 U.S.C. §1837. The DTSA provides the courts with broad injunctive powers. 18 U.S.C. §1836(b)(3).

The DTSA does not preempt or supplant state laws, but provides an additional cause of action. Because states vary significantly in their approach to the "inevitable disclosure" doctrine, its use has limited, if any, application under the DTSA, 18 U.S.C.§1836(b)(3)(A).

Some jurisdictions may commit certain types of dangerous sex offenders to state-run detention facilities following the completion of their sentence if that person has a "mental abnormality" or personality disorder that makes the person likely to engage in sexual offenses if not confined in a secure facility. In the United States, twenty states, the federal government, and the District of Columbia have a version of these commitment laws, which are referred to as "Sexually Violent Predator" (SVP) or "Sexually Dangerous Persons" laws.

Generally speaking, SVP laws have three elements: (1) That the person has been convicted of a sexually violent offense (a term that is defined applicable statutes) (2) That the person suffers from a mental abnormality and or personality disorder, which causes him or her serious difficulty controlling his or her sexually violent behavior. (3) That this mental abnormality and or personality disorder makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.

A "mental abnormality" is a legal term that is not identical to a mental disorder, though experts generally refer to diagnoses contained in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as evidence of a mental abnormality.

In most cases, commitment as an SVP is indefinite; however, once a person is committed, the confining agency is constitutionally required to conduct periodic reviews of that person's mental condition. If the committed person's condition changes so he or she no longer meets commitment criteria, he or she must be released. In some circumstances, committed persons can be released to court-monitored conditional releases to less restrictive alternative placements (LRAs).

Secession is the withdrawal of a group from a larger entity, especially a political entity, but also from any organization, union or military alliance. Some of the most famous and significant secessions have been: the Southern States seceding from the Union - which is one of the causes for the American Civil War, the former Soviet republics leaving the Soviet Union after its dissolution, Texas leaving Mexico during the Texas Revolution, Biafra leaving Nigeria and returning after losing the Nigerian Civil War, and Ireland leaving the United Kingdom. Threats of secession can be a strategy for achieving more limited goals. It is, therefore, a process, which commences once a group proclaims the act of secession (for example declaration of independence). A secession attempt might be violent or peaceful, but the goal is the creation of a new state or entity independent from the group or territory it seceded from.

Secession theory.

There is no consensus regarding the definition of political secession, and a lot of new political theory on the subject. The political philosophers of the rights and moral justification for secession began to develop as recently as the 1980s.American philosopher Allen Buchanan offered the first systematic account of the subject in the 1990s and contributed to the normative classification of the literature on secession. In his 1991 book Secession: The Morality of Political Divorce From Fort Sumter to Lithuania and Quebec, Buchanan outlined limited rights to secession under certain circumstances, mostly related to oppression by people of other ethnic or racial groups, and especially those previously conquered by other people. In his collection of essays from secession scholars, Secession, State, and Liberty, professor David Gordon challenges Buchanan, making a case that the moral status of the seceding state is unrelated to the issue of secession itself.

According to the 2017 book Secession and Security by George Mason political scientist Ahsan Butt, states respond violently to secessionist movements if the potential state would pose a greater threat than a violent secessionist movement would. States perceive future war as likely with a potentially new state if the ethnic group driving the secessionist struggle has deep identity division with the central state, and if the regional neighborhood is violent and unstable.

A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will) or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety or in part.

Courts and legislation generally feel a strong obligation to uphold the final wishes of a testator, and, without compelling evidence to the contrary, "the law presumes that a will is valid and accurately reflects the wishes of the person who wrote it".

A will may include an in terrorem clause, with language along the lines of "any person who contests this will shall forfeit his legacy", which operates to disinherit any person who challenges the validity of the will. Such no-contest clauses are permitted under the Uniform Probate Code, which most American states follow at least in part. However, since the clause is within the will itself, a successful challenge to the will renders the clause meaningless. Many states consider such clauses void as a matter of public policy or valid only if a will is contested without probable cause.

This article mainly discusses American law and cases. Will contests are more common in the United States than in other countries. This prevalence of will contests in the U.S. is partly because the law gives people a large degree of freedom in disposing of their property and also because "a number of incentives for suing exist in American law outside of the merits of the litigation itself". Most other legal traditions enforce some type of forced heirship, requiring that a testator leave at least some assets to their family, particularly the spouse and children.

Standing to contest will.

Typically, standing in the United States to contest the validity of a will is limited to two classes of persons:

Those who are named on the face of the will (any beneficiary);

Those who would inherit from the testator if the will was invalid.

For example, Monica makes a will leaving $5,000 each to her husband, Chandler; her brother, Ross; her neighbor, Joey and her best friend, Rachel. Chandler tells Monica that he will divorce her if she does not disown Ross, which would humiliate her. Later, Ross tells Monica (untruthfully) that Chandler is having an affair with Phoebe, which Monica believes. Distraught, Monica rewrites her will, disowning both Chandler and Ross. The attorney who drafts the will accidentally writes the gift to Rachel as $500 instead of $5,000 and also accidentally leaves Joey out entirely.

Under such facts:

Chandler can contest the will as the product of fraud in the inducement, because if the will is invalid, he will inherit Monica's property, as the surviving spouse.

Ross can contest the will as the product of Chandler's undue influence, as Ross will inherit Monica's property if Chandler's behavior disqualifies Chandler from inheriting (however, many jurisdictions do not consider a threat of divorce to be undue influence).

Rachel has standing to contest the will, as she is named in the document, but she will not be permitted to submit any evidence as to the mistake because it is not an ambiguous term. Instead, she will have to sue Monica's lawyer for legal malpractice to recover the difference.

Finally, neither Joey nor Phoebe is someone who stands to inherit from Monica, nor is either named in the will, and so both are barred from contesting the will altogether.

Quasi-tort is a legal term that is sometimes used to describe unusual tort actions, on the basis of a legal doctrine that some legal duty exists which cannot be classified strictly as negligence in a personal duty resulting in a tort nor as a contractual duty resulting in a breach of contract, but rather some other kind of duty recognizable by the law. It has been used, for example, to describe a tort for strict liability arising out of product liability, although this is typically simply called a 'tort'.

Although it is not to be found in most legal dictionaries, it has been used by some scholars such as Sri Lankan Lakshman Marasinghe. Lakshman proposes that the doctrine provides legal relief that falls outside tort or contract, but with some of the characteristics of tort or contract, as can be found in restitution (including unjust enrichment), equity (including unconscionable conduct), beneficiaries under a trust of the benefit of a promise, people protected by the valid assignment of promise, fiduciary duty, and contracts of insurance.

In conflict of laws, the choice of law rules for tort are intended to select the lex causae by which to determine the nature and scope of the judicial remedy to claim damages for loss or damage suffered.

History.

The first attempts to establish a coherent choice of law rule for tort cases involving a foreign law element varied between favouring the lex fori (for example the law of the court) and the lex loci delicti commissi (for example the law of the place where the tort was committed). The public policy of territorial sovereignty was always the principal consideration. Hence, the forum courts claimed their right to apply their laws to determine whether any lawsuit initiated in their jurisdiction allowed a remedy. Equally, it is the commission of a tort that vests a right of action in a claimant and therefore, it should always be for the law of the place where that right was created to determine the extent of any remedy flowing from it. In the end, a compromise emerged where the lex loci delicti was the first point of reference but courts retained a discretion to substitute the lex fori if the foreign law was deemed unfair and other practical considerations pointed to the application of forum law.

In the U.S., see the New York decision in Babcock v Jackson, (1963) for a discussion of the issues. This led to a debate in which state interests, rather than strict territorial connections, were suggested as the basis of a new test. In 1971, the American Law Institute produced the Second Conflicts Restatements and section 6 provides that the applicable law should be the one with the "most significant relationship" to the tort. In other common law states, a parallel movement occurred and resulted in the adoption of a proper law test. In substance, both forms are similar in their approach.

Trade secrets are a type of intellectual property that includes formulas, practices, processes, designs, instruments, patterns, or compilations of information that have inherent economic value because they are not generally known or readily ascertainable by others, and which the owner takes reasonable measures to keep secret. Intellectual property law gives the owner of a trade secret the right to restrict others from disclosing it. In some jurisdictions, such secrets are referred to as confidential information.

Definition.

The precise language by which a trade secret is defined varies by jurisdiction, as do the particular types of information that are subject to trade secret protection. Three factors are common to all such definitions:

A trade secret is information that:

is not generally known to the public;

confers economic benefit on its holder because the information is not publicly known; and

where the holder makes reasonable efforts to maintain its secrecy.

In international law, these three factors define a trade secret under article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, commonly referred to as the TRIPS Agreement.

Similarly, in the United States Economic Espionage Act of 1996, "A trade secret, as defined under 18 U.S.C. § 1839(3)(A),(B) (1996), has three parts: (1) information; (2) reasonable measures taken to protect the information; and (3) which derives independent economic value from not being publicly known."

Value.

Trade secrets are an important, but invisible component of a company's intellectual property (IP). Their contribution to a company's value, measured in terms of its market capitalization, can be major. Being invisible, that contribution is hard to measure. Still, research shows that changes in trade secrets laws affect business spending on R&D and patents. This research provides indirect evidence of the value of trade secrecy.